Abuse of Court's Process

Before Their Lordships

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Before Their Lordships

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Judgment

TIJJANI ABUBAKAR, J.S.C. (Delivering the Leading Judgement): This is a motion on notice filed on the 11th day of November, 2020, brought pursuant to Order 2 Rules 28 and 29, Order 3 Rules 14 and 15 of the Supreme Court Rules and the inherent jurisdiction of this Court.

In the application, the Appellant/applicant is seeking for the following orders: An order striking out the 3rd and 425 others Respondent’s brief of argument filed 29th January, 2020 and the 1st and 279th others respondent’s brief of argument filed on the 29th day of January, 2020, and the 1st and 279th Respondents brief of argument filed on the 3rd day of March, 2020 for being an abuse of Court process of this Court. Alternatively; An order of this Court directing the 1st and 279th other Respondents and the 3rd and 425th other Respondents to retain one counsel in this appeal.

The application is supported by 18-paragraph affidavit sworn to by Chisom Laura Ikeudeoba, Esq legal practitioner in the law firm of J.S Okutepa SAN. Counsel for the Appellant/Applicant.

The grounds upon which the application is premised are as follows: 1. The 1st and 279th other Respondents and the 3rd and 425th other Respondents were part of the 1st -707th claimants before the trial Court who jointly sought and obtained the leave of the trial Court to file suit No.

CV/440/2012/ Abah Dennis and 707th Ors. (suing for themselves and also representing all persons allocated with shops and /or open spaces by the Honourable Minister of the Federal Capital Territory and Federal Capital Development Authority and who are also disputing the imposition of additional money as purchase price for the said shops and/open spaces lying and situate in Wuye Ultra- Modern Market/ Wuye, Abuja) V. Honourable Minister Federal Capital Territory & 3 Ors. 2. The suit No.

CV/440/2012/ Abah Dennis and 707th Ors. (suing for themselves and also representing all persons allocated with shops and/or open spaces by the Honourable Minister of the Federal Capital Territory and Federal Capital Development Authority and who are also disputing the imposition of additional money as purchases prices for the said shops and/open spaces lying and situate in Wuye Ultra-Modern Market, Wuye, Abuja) V. Honourable Minister Federal Capital Territory & 3 Ors, was filed in a representative capacity. 3. The trial Court delivered its judgment in suit No.

CV/440/2012 on the 29th day of April 2015, in favour of the 1st-707th claimants in a representative capacity. 4. The Appellant highly dissatisfied with the decision of the high Court of the Federal Capital Territory delivered on the 29th April, 2015, in suit No. CV/440.2012, appealed to the Court below and the 1st- 707th respondents defended the appeal in a representative capacity. 5.

The Court below, after hearing the appeal of the Appellant/ delivered its judgment on the 16/12/2016 wherein it dismissed the appeal of the Appellant for being an abuse of Court process without considering the merit of the appeal. 6. The Appellant being highly dissatisfied with the judgment of the Court below, appealed to this Hon Court via a notice and grounds of appeal filed on 23rd January, 2017 and filed the Appellants brief of Argument on 27th March , 2018. 7.

The 1st and 279th other Respondents and the 3rd and 425th other Respondents who are part of the 1st -707th Respondents have elected to split themselves before this Honourable Court and to file two separate briefs of arguments for the 1st set of Respondents before this Honourable Court. 8.

The 1st and 279th other Respondents and the 3rd and 425th other Respondents who are part of the 1st to -707th respondents that jointly sought and obtained leave of the trial Court to file the instant action in a representative capacity and maintained one counsel at the trial Court and at the Court below cannot split themselves and file two separate Respondent’s briefs of argument in this Honourable Court. 9.

An appeal is the continuation of the case filed in the trial Court and since the 1st and 279th Respondents and the 3rd and 425th other Respondents cannot be allowed to file more than one written address at the trial Court, the 1st and 279th Respondents and the 3rd and 425th other Respondents cannot be allowed to file more than one brief of argument before this Honourable Court.

​On the 2nd day of November, 2021 when the application was heard, learned Senior counsel for the applicant J.S Okutepa, SAN, referred to the application, the affidavit in support of the motion, exhibits and the written address filed by the applicant pursuant to the order of this Court made on the 2nd day of March, 2021. Learned Counsel also filed reply.

In the written address filed in support of the application, learned senior Counsel for the Applicants submitted that the 1st -707th Respondents in this appeal filed an amended writ of summons and an amended statement of claim before the trial Court in which they jointly sought for and obtained the leave of the trial Court to file suit No. CV/440/2012, suing for themselves and representing all persons allocated with shops and/or spaces by the Honourable Minister of the Federal Capital Territory and Federal Capital Development Authority. Counsel submitted that suit No.

CV/440/2012 was filed in a representative capacity in which the plaintiffs at the trial Court sued for themselves and also representing other occupants of the shops located in the market. Learned senior Counsel submitted that in both the trial Court and the lower Court, the 1st-707th Respondents retained one counsel, S.C Peters Esq who filed single process in defence of the interest of the 1st- 707th Respondents.

​Learned Counsel submitted that ordinarily, the Respondents are entitled to retain separate counsel, but having filed one process in a representative capacity at the trial Court, they cannot and have no right to split themselves before this Court.

Counsel further contended that allowing them to do so, will amount to an abuse of Court process, learned Counsel further submitted that the right to retain Counsel even though ordinarily available to a Respondent, becomes restrictive and exercisable within some bounds, that the right is also subject to other rights, he submitted that there must be sanity in the exercise by a party of its Constitutional right. Counsel cited and relied on the decisions in LADOJA V. AJIMOBI (2016) 10 NWLR (pt. 1519) 87 at 129. PDP V. PETERSIDE (2016) 7 NWLR (Pt. 1512) 574 at 584 and BUKOYE V.

ADEYEMO (2017) NWLR (Pt. 1546) 173 AT 193 in support of his submissions. It was also the contention of learned Counsel that the submissions of the Respondents on the rights of the Respondents to retain Counsel of their choice cannot be right because if that is allowed it will encroach on other rights.

​Learned Counsel further submitted that an appeal is a continuation of the case as constituted at the trial Court that since the 1st -707th Respondents could not have been allowed to use two or more counsel to file different processes for them at the trial Court, having filed a representative action, they cannot and have no right to file two or more briefs before this Court, he relied on PDP V. SYLVA (2017) 5 NWLR (pt. 1557) 74 at 93, OREDOYIN V, AROWOLO (1989)4 NWLR (pt. 174) 172 at 211 and ADEGOKE MOTORS LTD. V. ADESANYA (1989) 3 NWLR (pt. 109) 250.

Learned Counsel also submitted that there cannot be more than one dominus litis in a matter, and the dominus litis in this matter being Abah Dennis, whatever action is taken by him is final and binding, including but not limited to choice of counsel and legal argument in support of their joint interest. Counsel submitted that the 1st -707th Respondents instituted the action at the trial Court as one in Representative capacity. They also filed one brief of argument at the lower Court, but decided to file multiple briefs in this Court.

Counsel contended that having filed one originating process at the trial and lower Courts in representative capacity as instructed by their dominus litis they are bound to continue in the same manner because that is the law, he said there cannot be two dominus litis in one action, and urged this Court to so hold, he referred to the decision of this Court in OKONJI & ORS V. NJOKANMA & ORS (1989) LPELR-2478 (SC), and RE: APEH & ORS (2017) LPELR-42035 (SC).

Learned Counsel then submitted that the daunting question in this application is whether a party who argued his case in a singular manner before the trial and lower Courts could be allowed to proliferate his case by filing more than one brief of argument in this Court, the answer as proffered by the learned Senior Counsel is in the negative because so doing will constitute an abuse of Court process. Learned counsel finally urge this Court to hold that the 1st -707th Respondents cannot split themselves before this Court, and grant the application as prayed.

​In opposing the motion on behalf of the 1st and 279 other Respondents, Learned Senior Counsel A.O. Maduabuchi SAN said he filed a counter affidavit and written address on the 5th day of October, 2021. In the written address filed on behalf of the 1st and 279 other Respondents, learned senior Counsel submitted that the 1st to 707th Respondents who had been acting in a representative capacity had disagreement amongst themselves, and could not agree on the Counsel who will represent them.

Counsel further submitted that the disagreement was affecting the flow of the matter and on the 11th December, 2018 this Court directed S.C Peters Esq to submit the list of the Respondents he was representing, and the remaining would be assumed to be represented by Solo Akunma SAN, learned Counsel submitted that it was in compliance with the directives that S.C Peters Esq submitted the list of 1st and 276 others as the Respondents he represents, while the rest of the Respondents will be represented by Akunma SAN.

Counsel further submitted that since the order has not been set aside, it remains extant and must be obeyed by both parties, learned counsel relied on the decision in LADOJA V. AJIMOBI (2016) 10 NWLR (pt.1519) 87 to support his contention. Counsel said nothing can be more irritating than relitigating an issue that had been effectively decided, he maintained that the issue had been laid to rest at the time this Court made the order directing S.C Peters to submit the list of the Respondents he represents, he finally urged that this application be dismissed.

Learned senior Counsel for the 3rd and 425 other Respondents, Chief Solo Akuma SAN, filed Counter Affidavit and written address on the 24th day of February, 2021 and 16th March, 2021 respectively.

In the written address, learned senior Counsel formulated a sole issue for determination on behalf of the 3rd and 425 other Respondents, the issue is as follows; “whether the exercise of the right of 1st-707 respondents who have engage two distinct counsel to represent them and have filed two separate briefs of argument on their behalf constitute as abuse of Court process and has the appellant any right to determine the counsel to represent any set of respondents amongst 1st – 707th respondent in this appeal.”

Counsel submitted that the right to choose Counsel is solely that of a party in any legal proceedings, he cited and relied on the decision in FESTUS V. AFRICAN ACTION CONGRESS & ORS (2020) 4 NWLR (pt. 1713) Pg. 105, to argue that parties are entitled to counsel of their choice without interference from the Court or any other party, he further submitted that a litigant is always entitled to brief a Counsel of his choice to handle his case. Counsel said in deciding the case of FESTUS V. AFRICAN ACTION CONGRESS (Supra), the Court relied on its decision in PDP V.

EZEONWUKA (2018) 3 NWLR (Pt. 1606) Pg. 187 at 255. Learned senior counsel further submitted that the first set of Respondents have the right to choose separate Counsel to represent them in this appeal, and having chosen to separate Counsel to represent them, they have not infringed upon any law or rules of this Court, he therefore urged this Court to so hold.

Learned senior counsel submitted that the cases of LADOJA V. AJIMOBI, PDP V. PETERSIDE, and BUKOYE V. ADEYEMI (Supra) relied on by the applicant in support of his submissions are not applicable in the instant application. Learned Counsel also contended that Abah Dennis is not the only dominus litis in the instant case as claimed by the applicant. The 1st-707th Respondents who are named parties representing all persons allocated with shops and open space are dominus litis and they are not bound by the choice of Counsel by Abah Dennis.

​Learned Counsel finally submitted that the application is frivolous, misconceived and designed to truncate the expeditious hearing and determination of the appeal, he further submitted that the application is an abuse of process, he therefore urged this Court to hold that the application lacks merit and dismiss it.

RESOLUTION The argument of the Applicant in this application is that, where a party initiates an action in representative capacity at the trial Court and briefs single Counsel to prosecute the action, the party cannot subsequently break and engage different counsel to handle the same action on appeal, the party must continue to act through the same single Counsel. The Respondents on the other hand contended that a party may split and engage different Counsel in the same action whenever the need for so doing arises.

By the provisions of Section 36 of the Constitution of Nigeria, 1999 (as amended) in the determination of his civil rights and obligations, a citizen has the fundamental right to a Counsel of his own choice. In MARCEL NNAKWE v. THE STATE (2013) LPELR-20941(SC) this Court held as follows: “with reference to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, the law is well settled that every party to a case has an unfettered right of representation by counsel of his choice. See Nwambe v. The State (1995) 3 NWLR (Pt. 384) 358.” See also; SEBASTIAN ADIGWE v.

FEDERAL REPUBLIC OF NIGERIA (2015) LPELR-24694 (SC). It is the law, that a party in litigation has the right and freedom to engage Counsel of his Choice without interference or hindrance at any stage of the matter, this Court in ISIAKA & ORS V.

OGUNDIMU & ORS (2006) LPELR-1552 (SC) per KUTIGI JSC (CJN) (of blessed memory) held as follows: “A litigant is free to engage counsel of his choice at any time and may equally terminate such engagement at any time.” ​From the foregoing therefore, it is well settled that a litigant is free and at liberty to change his counsel, and where parties agree to engage one Counsel and along the line some irreconcilable or other differences occur, any party that is not satisfied is at liberty to pull out of any prior arrangement and engage Counsel of his choice, a party may decide to change Counsel at any time for any reason or without reason at all, the Court cannot participate in the choice of Counsel for a litigant.

A party desirous of changing Counsel can do so personally in Court by announcing it or through any counsel of his choice. The Court cannot intervene in any form under the guise of exercising its discretion, the entire decision is that of the party. The Court has no discretion to grant or refuse leave to a litigant to change his counsel. If such discretion were to exist, it would also imply that the Court could refuse such leave and that would be odious in the extreme, both to the litigant and the legal profession. May this day never come.

The right to represent a party in a matter before a Court of law involves the right to brief and instruct any counsel or a number of counsel a litigant may wish to engage, this Court cannot validly exercise any discretion to curtail this fundamental right as provided under Section 36 of the Constitution of the Federal Republic of Nigeria (1999) (as amended).

In this application, what the applicant is requesting this Court to do, that is compelling some Respondents to retain a particular Counsel is in clear contravention of the Constitution and the right of the parties to engage Counsel of their choice.

This Court in its recent decision in FESTUS V. A.A.C & ORS – SC. (2020) 4 NWLR (Pt. 1713) 105 re-stated the settled position of the law, when the Court held as follows: “Parties are entitled to counsel of their choice without interference from the Court or any other party. A party having exercised such right cannot be gauged or questioned for any reason. Thus the 1st respondent in the instant case having debriefed the firm of Tawo E. Tawo SAN & Co and appointed H.

A Bello Esq to represent it in Court, had the right to do so and the appellant had no right to interfere with the choice of counsel representing the 1st respondent. PDP V. Ezeonwuka (2018) 3 NWLR (pt. 1606) 187 referred to.” Finally, the position of this Court on this matter has always been the same, it has not changed and it will not be changed by this application, the position of this Court is therefore that the Appellant in this appeal has no right to question and or interfere with the choice of Counsel to represent the Respondents.

It is proper to say that a party coming to Court with such an application must ensure that it is not founded on trifles. The application lacks merit and therefore deserves to be and is hereby dismissed. It is hereby ordered that, parties march to hearing of this appeal on the merit without delay. Application is dismissed. Parties shall bear their respective costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the Ruling of my learned brother, TIJJANI ABUBAKAR, JSC and I agree with him that the appellant’s motion filed on 11th November is devoid of merit.

The unfettered right of a litigant to engage counsel of his choice is firmly entrenched in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, as amended. No one, neither the Court nor any other party in the litigation has the authority to interfere with the exercise of that right under any guise whatsoever.

See: P.D.P Vs Ezeonwuka (2018) 3 NWLR (Pt. 1606) 187; (2017) LPELR – 42463 (SC) @ 86 B – E; Festus vs A.A.C. & Ors. (2020) 4 NWLR (Pt.1713) 105. ​The only stricture on a litigant is that, no matter the counsel representing him, he must be consistent with the case he presents through the hierarchy of the Courts. See Asaboro & Anor. Vs Pan Ocean Oil Corporation (Nig) Ltd & Anor ​(2017) 1 SC (Pt. II) 30; Nyako Vs Adamawa State House of Assembly & Ors. (2016) LPELR- 41822 (SC) @ 70-72 G-B.

I reiterate that the appellant herein has no right to determine the respondents’ legal representation nor can the Court disqualify or impose counsel on them. I agree entirely with my learned brother that this application is frivolous and intended to delay the hearing of the appeal. It is accordingly dismissed by me. I abide by the order on costs.

EJEMBI EKO, J.S.C.: The right to fair hearing is both a natural right and a constitutional right. In this country the Apex Court has laid to rest the principle: that a party in litigation in a Court of law has unfettered constitutional right to be represented by a Counsel of his choice: ISIAKA & ORS. v.

OGUNDIMU & ORS. (2006) LPELR – 1552 (SC) where Kutigi, JSC (as he then was) made it very clear that the exercise of that right includes, not only his freedom to engage a Counsel of his choice to represent, but also the right at any time in course of the proceedings, to terminate such engagement. That freedom connotes his right to engage a new Counsel, upon firing his erstwhile Counsel, to represent him. His adversary, under the guise of any perceived convenience or inconvenience, does not enjoy the liberty nor have any right to foist on him any Counsel.

The respondent bears no duty to the appellant to appoint only Counsel acceptable to the appellant, and vice versa. This Court, in FESTUS v. A.A.C & ORS. (2020) 4 NWLR (pt. 1713) 105, restated the settled principle this way: that because a litigant has a right to engage a Counsel of his own choice without interference; the exercise of that right cannot be gauged or questioned for any reason. The right to engage a Counsel of his own choice to represent him is the inalienable right the litigant enjoys. The right is personal to him. The appellant in this case, as was the case in FESTUS v.

A.A.C (supra); PDP v. EZEONWUKA (2018) 3 NWLR (pt. 1606) 186, has no right whatsoever, to interfere with the choice of Counsel to represent the respondent. The Court also, in a civil case, has no such right or power to choose a Counsel to represent a party in a case.

​On the premise of my foregoing stance, this application is quite frivolous and vexatious. I am therefore in complete agreement with my learned brother, TIJJANI ABUBAKAR, JSC, in the decision just rendered that the application founded on mere trifles lacks merits and therefore deserves to be and is hereby dismissed. Application refused.

MOHAMMED LAWAL GARBA, J.S.C.: I have had a preview of the leading Ruling delivered by my learned brother, Tijjani Abubakar, JSC, in this appeal and agree that the Appellant has no legal right to dictate to any, some or all of the Respondents who to engage and brief as counsel for the purpose of the prosecution of this appeal, just like the Respondents cannot validly challenge or interfere with the choice by the Appellant to engage the learned SAN or any other counsel to represent it in the appeal.

​The right to fair hearing provided for and guaranteed by the 1999 Constitution, as a fundamental right, in Section 36 (1) is personal to “a person” in the determination of his civil rights and obligations by “a Court or other Tribunal established by law”. One of the basic requirements of the principle and the right to fair hearing is that a party whose rights and obligations are to be determined in the judicial proceedings of all Courts of law, shall be afforded or given reasonable opportunity to present all the material and relevant side of his case.

In other words, in keeping with the requirement of the right to fair hearing, a party to a legal action before a Court of law shall and must be afforded and given the opportunity to be heard by the Court before his civil rights and/or obligations are determined by the Court. That is one of the twin pillars of natural justice that is now elementary in our Constitutional and Judicial Jurisprudence. See Sheldon v. Brown Field Justices (1964) 2 Q.B., 573, Adigun v. A.G., Oyo State (1987) 1 NWLR (pt. 53) 678, Kotoye v. CBN (2001) FWLR (pt. 49) 1567, Okike v.

Legal Practitioners Discipline Committee (2005) 5 SC (pt. III) 75, A.G. Rivers State (2006) 7 SCNJ, 613, (2006) 6-7 SC, 131, Nospetco Oil & Gas Ltd. v. Olorunnimbe (2012) 13 WRN/108, Achuzia v. Ogbomah (2016) 2 CAN (pt. 1) 1 (SC).

In that regard, a party is also constitutionally entitled as part of the right to fair hearing, to conduct his case personally or through/by a legal practitioner/counsel of his choice, engaged and briefed to represent him in the conduct of the judicial proceedings of all the Courts in the judicial hierarchy in Nigeria. It is a right that cannot be denied or interfered with by any other party or even the Court, as ably demonstrated in the pronouncements by this Court in the judicial authorities cited in the Leading Ruling. See also Fawehinmi v. NBA (No.1) (1989) 2 NWLR (pt. 105) 494, Ogugu v.

State (1994) 9 NWLR (pt. 366) 1, Atake v. Afejuku (1994) 9 NWLR (pt. 368) 379.

In the present appeal, all the Respondents were each specifically named as a party to the case initiated at the trial Court, as borne out by the Further Amended Writ of Summons dated 12th May, 2014 which is at pages 280 – 304 of volume 1 of the Record of Appeal, and so every one of them had the equal right to be heard on the claims made in the case, although they may be common or similar to be more conveniently tried by way of representative action under the Rules of Court. See Mozie v. Mbamalu (2006) 15 NWLR (pt. 1003) 466.

However, the Rules or convenience of a Court cannot derogate from the individual and personal right to fair hearing guaranteed by the grund norm, which is the fountain of all laws in Nigeria, that is supreme, binding on all persons and authorities and so prevails over them. See Abacha v. Fawehinmi (2000) 4 SC (Pt. II) 1, (2000) 6 NWLR (pt. 660) 228, Adisa v. Oyinwola (2000) 10 NWLR (674) 116, ACB Plc v. Losada Nig. Ltd. (1995) 7 NWLR (pt. 405) 26, A.G. Federation v. Abubakar (2007) 6 SC (pt. II) 62, (2007) 10 NWLR (pt. 1041) 1, A.G., Ondo State v. A. G., Federation (2002) FWLR (pt. III) 1972.

Since the named Respondents only chose to engage and brief a single counsel to initiate the action for all of them, there is no valid legal principle or rule of law which stops or prevents any one or more of them from subsequently engaging and briefing another or other counsel of their choice to represent them in the case at all levels of the judicial hierarchy.

As stated earlier, the Appellant/learned SAN for the Appellant lacks the legal competence and standing to interfere with the said choice or option exercised by the Respondents by seeking to disqualify the Counsel so chosen to represent them.

​In the above circumstances and for the reasons set out in the leading Ruling, I too find the application without merit and dismiss same.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: Having had the privilege of previewing the Ruling just delivered by my learned brother, the Hon. Justice Tijjani Abubakar, JSC, I can not but whole heartedly concur with the reasoning reached therein, to the inevitable conclusion that the instant application lacks merits. Hence, I too hereby dismiss the application. Parties shall bear the respective costs thereof.

Judgment

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment) : This appeal is against the decision of the Federal High Court, Yenagoa Judicial Division, delivered by Honourable Justice J. E. Iyang on 7th May, 2019 in Suit No. FHC/YNG/CS/7/2018, wherein the learned trial Judge dismissed the Appellant’s preliminary objection challenging the jurisdiction of the Court to entertain the 1st to 3rd Respondents’ suit. Aggrieved by the said decision, it appealed to this Honourable Court vide a notice of appeal filed on 21st May, 2019 in which it sets out three grounds of appeal.

In compliance with the rules of this Court, the parties filed and exchanged their respective briefs of argument. Appellant’s brief of argument is dated and filed 28th April, 2020, but deemed properly filed on 20th September, 2021. In the said brief of argument, three issues were formulated for the determination of this appeal, thus: 1. “Whether the lower Court has subject matter jurisdiction over the instant suit which is simply for the recovery of a sum of money allegedly agreed by the parties? ​2. Whether the lower Court was right when it held that the instant suit is not statute-barred? 3.

Whether the lower Court was right when it held that the instant suit was not an abuse of Court process notwithstanding that the parties and the subject matter in the suit are the same with that of Suit No. FHC/YNG/CS/2016 – Chief Ebikeseye Bipeledei & Ors. (representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State) v. NAOC?” In the 1st to 3rd Respondents’ brief of argument dated 28th September, 2020 and filed on 30th September, 2020 but deemed properly filed on 20th September, 2021, two issues were formulated as follows: 1.

“Whether upon careful consideration of the circumstances, the lower Court was right to have held that the Federal High Court has subject matter jurisdiction over claims of compensation duly paid for oil spill damage in consonance with the requirements of the Oil Pipeline Act. 2.

Whether the lower Court was right when it held that the instant suit did not arise from a contractual transaction or claims of simple contract as same pertains to compensation for oil spill damage?” ​In the same vein, the 4th to 6th Respondents filed a brief of argument dated 3rd August, 2020 and filed 4th August, 2020 but deemed properly filed on 20th September, 2021. In the said brief, three similar issues to those formulated by the Appellant were distilled as follows: 1.

“Whether the lower Court has subject matter jurisdiction over the instant case which is founded on claim for compensation for oil spillage in connection with the oil mining activities of the Appellant? 2. Whether the lower Court was right when it held that the instant suit is not statute-barred? 3. Whether the lower Court was right when it held that the instant suit was not an abuse of Court process notwithstanding that the parties and the subject matter in the suit are the same with that of Suit No.

FHC/YNG/CS/2016 – Chief Ebikeseye Bipeledei & Ors. (representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State) v. NAOC?” ​Two separate reply briefs of argument dated 23rd September, 2021 were filed on 24th September, 2021, in response to the respective briefs of arguments filed on behalf of the 1st to 3rd Respondents and 4th to 6th Respondents. I shall consider the relevant submissions made in the reply briefs as the need arises.

Meanwhile, having had the benefit of considering the issues raised by the parties and the arguments canvassed thereon, I am of the opinion that the issues formulated by the Appellant are apt for the determination of the present appeal. I shall therefore consider the appeal on the backdrop of the issues formulated by the Appellant.

APPELLANT’S SUBMISSIONS On the first issue formulated by the Appellant, it is the submission of counsel that the learned trial Judge did not properly review the reliefs and averments contained in the 1st to 3rd writ of summons and statement before arriving at the conclusion that the subject matter of the instant suit cannot be considered as a contract. Relying on paragraphs 9, 17, 20, 21, 24, 25, 27 and 28 of the statement of claim, counsel argued that the subject matter of this suit is purely contractual, particularly as the elements of a valid contract has been satisfied by the parties.

He noted that paragraph 17 of the statement of claim shows that an offer of N420,000,000.00 (Four Hundred and Twenty Million Naira) was made to Late Chief M.E.A. Bipeledei on behalf of the 1st to 3rd Respondents; and paragraph 24 shows that the 1st to 3rd Respondents accepted the offer. According to counsel, the consideration can be gleaned from paragraphs 24 and 25 of the statement of claim, which is the forbearance by the 1st to 3rd Respondents to sue the Appellant; and the pleadings also disclosed the intention to enter into legal relations. The case of ABIODUN & ANOR Vs.

AJISAFE & ANOR (2018) LPELR – CA/IB/55/2012. ​Counsel noted that from the reliefs sought by the 1st to 3rd Respondents, they are seeking to recover money agreed upon by the parties (by way of negotiation) and allegedly deposited in an interest-yielding account. Counsel further argued that the instant case is not an oil spill claim for which the jurisdiction of the Federal High Court can be invoked, but a claim for enforcement of an alleged contract.

It is the further submission of Counsel that since the original cause of action (alleged oil spill from the Appellants’ facilities in Gbanraun Kingdom) has been superseded by the alleged agreement between the parties. The case of ABEY & ORS Vs. ALEX & ORS. [1999] 14 NWLR (Pt. 637) 148 was relied upon by the Appellant in support of the submission. Counsel also contended, relying on the decision in the cases of ONUORAH Vs. KRPC LIMITED [2005] 6 NWLR (Pt. 921) 393 at 405; paras A–D; ADELEKAN Vs.

ECU-LINE NV [2006] 12 NWLR (Pt. 993) 33, that the Federal High Court lacks jurisdiction an action for the enforcement of simple contract even if such contract relates to causes or matters enumerated under Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the “Constitution”). The case of NKUMA Vs. ODILI [2006] 6 NWLR (Pt. 977) 587 was relied upon to submit that the mere mention of “oil”, “spillage”, “minerals” or “pipelines” in a suit does not automatically invoke the jurisdiction of the Federal High Court.

On the second issue, Appellants’ counsel submits that even if the lower Court was right that the present suit is founded on oil spill, the action is statute-barred as same was not commenced within the five (5) years limitation period prescribed by Section 16 of the Limitation Law of Bayelsa State (the “Limitation Law”). The cases of EGBE Vs. ADEFARASIN (No. 2) [1987] 1 NWLR (Pt. 47); JULIUS NDUKA Vs. EDWIN OGBONNA [2011] 1 NWLR (Pt. 1227) 153 at 168, paras C–E; GRAINS PROD. AGENCY Vs.

EZEGBULEM [1999] 1 NWLR (Pt. 587) 399 on what the Court should rely on in determining when an action becomes statute barred. He submitted that from the averments in paragraphs 26 and 28 of the statement of claim, the 1st to 3rd Respondents’ right of action accrued in 2005 or 2009. This is because Suit No.

OHC/C/17/2001 relating to the rightful claimants to the money was determined in 2005 and the 1st to 3rd Respondents have been aware since 2005 that the Appellant has refused to pay the compensation money to them despite repeated demands; or because the Appellant refused to honour the 1st to 3rd Respondents’ solicitor’s demand in 2009; for the payment of the negotiated compensation.

In addition, Counsel argued that even if the action is based on oil spill as held by the learned trial Judge, the limitation law of a state is applicable to actions founded on federal legislations, such as the Oil Pipelines Act, and it is immaterial that the action was filed at the Federal High Court, citing the ratio of the decisions in ETIM Vs. IGP [2001] 11 NWLR (Pt. 724) 266; SHELL DEVELOPMENT COMPANY NIGERIA LIMITED Vs.

CHIEF ZEDIE WILLIAMS & 2 ORS. (unreported judgment of the Court of Appeal, Port Harcourt Judicial Division delivered on 6th December, 2017); SHELL PETROLEUM DEVELOPMENT COMPANY Vs. CHIEF GOODLUCK MEBURU (2013) LPELR–21889 (CA); SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Vs. DODOYE WEST (2018) LPELR–44290 (CA); ASABORO Vs. PAN OCEAN OIL CORP. (NIG) LIMITED [2017] 7 NWLR (Pt. 1563) 42. The Appellant’s learned Counsel submitted that the decision in BENSON Vs.

MOBIL PRODUCING (NIGERIA) UNLIMITED [2014] ALL FWLR (Pt. 722) 1821–1822, which the learned Judge relied on to hold that the limitation law of Bayelsa State cannot apply to claims brought under Federal Legislation is no longer a good law in view of the Supreme Court decision in ASABORO Vs.

PAN OCEAN OIL CORP. (NIG.) LIMITED (supra). ​Appellant’s counsel maintained that the instant suit is statute-barred having been commenced after five years from the date the cause of action arose and the 1st to 3rd Respondents cannot assert any claim in respect of the subject matter before the Court, relying on the decisions in ADEOSUN Vs. JIBESIN [2001] 11 NWLR (Pt. 724) 290 at 314, para F; SPDCN LIMITED Vs. AMADI [2010] 13 NWLR (Pt. 1210) 82 at 119.

It is the argument of the Appellant’s counsel that the instant suit constitutes an abuse of Court process, having been commenced during the pendency of Suit No. FHC/YNG/CS/10/2016 – Chief Ebikeseye Bipeledei & Ors. (representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State v. NAOC) (the “Previous Suit”). The cases of UMEH & ANOR Vs. IWU & ORS (2008) LPELR – SC. 60/2007, 21 to 22, paras F – A; A.G., KWARA STATE & ANOR Vs. LAWAL & ORS. (2017) LPELR – SC. 321/2011, 16 – 17, paras C – A.

It is the submission of Counsel that the ingredients of abuse of Court process exists in this case, that is, the parties in both actions are the same since the Plaintiffs in both suits are members of Gbanraun Kingdom, citing OTAPO Vs. SUNMONU [1987] 2 NWLR (Pt. 58) 587 at 623; the subject matter in both suits is the same/similar being the recovery of negotiated sum of money (compensation) arising from the oil spill of 1997 allegedly deposited by the Appellant in an interest yielding account and accrued interest thereon. The cases of UMEH Vs. IWU [2008] 8 NWLR (Pt. 1089) 225 at 260; ALI Vs.

ALBISHIR [2008] 3 NWLR (Pt. 1073) 94 at 143 were also cited by Counsel before he submitted that the reliefs sought in the two suits are the same. Counsel urged the Court to strike out/dismiss the matter as the trial Court has no jurisdiction to proceed with same. 1st – 3rd RESPONDENTS’ SUBMISSION On the first issue formulated by Counsel, it is submitted on behalf of the 1st to 3rd Respondents relying on the decisions ALAGOMA & ORS. Vs. SPDC LIMITED (2013) LPELR–21394 (CA); CHEVRON (NIG) LIMITED Vs.

IMO STATE HOUSE OF ASSEMBLY & ORS. (2016) LPELR–41563 (CA), that the instant suit borders on compensation for oil spills as settled by the affected parties. Counsel further submitted that the fact that a negotiation is governed by the principles of contract does not ipso facto make it a contract simpliciter; that no contract has been executed by the parties in this case, relying on MRS. T.C. CHUKWUMA Vs. MR. BABAWALE IFELOYE (2008) LPELR–862 (SC). The cases of ONWUDIWE Vs. FRN [2006] 10 NWLR (Pt. 988) 428; AMADI Vs.

SOKOTO L.G. [2012] 5 NWLR (Pt. 1292) 181 were relied upon in support of the submission that the nature of a claim determines the nature of a suit or cause of action and the competence of a Court to entertain the suit. Item 19 of the Second Schedule to the Constitution; Section 19 of the Oil Pipelines Act; the cases of BARRY & 2 ORS. Vs. OBI A. ERIC & 3 ORS. [1998] 8 NWLR (Pt. 562) 404 at 416; SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Vs. OTELAMABA MAXON & ORS. [2001] FWLR (Pt. 47) 1030; C.G.G. (NIG.) LIMITED Vs.

ASAAGBARA [2001] 1 NWLR (Pt. 693) 155, were relied upon by counsel to submit that the instant suit arises from the Appellant’s crude oil mining activities and the lower Court was justified to assume jurisdiction. It is the submission of counsel, relying on the decisions in MOBIL PRODUCING (NIG.) UNLIMITED Vs. DAVIDSON [2020] 1 NWLR (Pt. 1722) 1–11; DAIMLER CO. LIMITED Vs.

CONTINENTAL TYRE & RUBBER CO. (GREAT BRITAIN) LIMITED (1916) 2 AC 307, that owing to the principle of continuous damage from the oil spill, the instant suit is not a proper case for the application of the Limitation Law of Bayelsa State. On the second issue, it is the submission of the 1st to 3rd Respondents’ Counsel, relying on Section 11(5) of the Oil Pipeline Act, and the case of NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC) & ANOR Vs.

CHIEF STEPHEN ORHIOWASELE & ORS (2013) LPELR–24710 (SC) that the 1st to 3rd Respondents’ claim borders on their entitlement to compensation for pollution and damage resulting from the Appellant’s mining operations and same is actionable at the Federal High Court since oil pipeline is an exclusive legislative issue.

It was further argued that even if the 1st to 3rd Respondents’ action is not about entitlement to claim for compensation, but one which arose from a negotiation simpliciter without regard to subject matter and surrounding circumstances, it nevertheless would not constitute a simple contract, citing MRS. T.C. CHUKWUMA Vs. MR. BABAWALE IFELOYE (2008) LPELR – 862 (SC). ​Counsel further submits that the decision in ASABORO Vs. PAN OCEAN OIL CORP. NIG.

LTD. (supra) relied upon by the Appellant is of limited application by reason of its ratio and the fact that it borders on land matters, while the instant suit borders on enforcement of right to compensation for oil spill. He maintained that the decision in the case of BENSON Vs. MOBIL PRODUCING (NIGERIA) LIMITED (supra) relied upon by the learned trial Judge is a better law and applicable to the instant suit. The case of PRINCE TOM EDEBOR Vs. ELF PETROLEUM NIGERIA LIMITED (2011) LPELR-4878 (CA) was also cited by counsel.

On the issue of abuse of Court process, Counsel noted that the parties in both suits are different, the subject matter is not the same and the two cases are materially and fundamentally different. He relied on the case of NDIC Vs. UBN PLC [2015] 12 NWLR (Pt. 1473) 246 in support of his contention that the present suit is not an abuse of Court process. 4TH–6TH RESPONDENTS’ SUBMISSION The learned counsel to the 4th to 6th Respondents submits that it is the Plaintiff’s claim that is considered in determining whether or not a Court has jurisdiction, citing GOLDMARK (NIG.) LIMITED Vs. IBAFON CO.

LIMITED ​[2012] 10 NWLR (Pt. 1308) 291; FBN PLC Vs. GOVT. OF ONDO STATE [2012] 11 NWLR (Pt. 1312). It is the submission of counsel that from the reliefs sought by the 1st to 3rd Respondents in this case, their claim is for compensation for an oil spillage which allegedly occurred sometime in 1997 in connection with the Appellant’s oil mining activities.

Counsel argued that it was the Appellant that unilaterally resolved to pay the negotiated sum in full and final settlement of all claims arising from the 1997 oil spillage as against the sum of N3,500,000,000.00 (Three Billion, Five Hundred Million Naira) demanded by the 1st to 3rd Respondents; that there was no contractual relationship with the Appellant in anticipation of the payment of compensation. Section 251(1) (n) of the Constitution and the case of SPDC (NIG.) LIMITED Vs. LALIBO [2009] 14 NWLR (Pt. 1162) 564; FOLKSYNTHESIS LIMITED Vs.

GAPUMA (UK) LIMITED [2017] 8 NWLR (Pt. 1566) 150 at 165, paras C–D, were relied upon to argue that the subject matter of the instant suit, which is the same as in Suit No. OHC/1/2015, falls within the exclusive jurisdiction of the lower Court and does not border on simple contract. On the second issue, Counsel noted that the Appellant had by its letter dated 22nd May, 1998 addressed to the Late Chief M.E.A. Bipeledei confirmed the deposit of the compensation sum in an interest yielding account pending the determination of Suit No. OHC/9/98.

He then submits that the mere fact that the Appellant refused to respond to the letters of the Respondents’ community through their community demanding for payment for compensation does not ipso facto mean that the Respondents community’s cause of action has accrued and elapsed as acknowledgment of debt is an exception to an action being statute barred.

He further submits that it is only when the Appellant specifically denies its obligation or liability to pay any form of compensation due to the Respondents’ Gbanraun Community that their right of action can accrue. ​It is the further submission of counsel that even if the subject matter in this suit is a simple contract on a negotiated compensation agreement, continuance of damage or injury is an exception to a cause of action that is statute-barred and since the Respondents are still suffering from injuries sustained as a result of the 1997 oil spillage, the present suit is not statute-barred.

Counsel also relied on the decision in SIFAX (NIG.) LTD & ORS Vs. MIGFO NIG. LTD & ANOR [2018] 9 NWLR (Pt. 1623) 138 on the position of law that where an action is filed in a Court that lacks jurisdiction but is subsequently filed in a Court vested with jurisdiction, time will be frozen and shall not run against the party during the period of litigation. The 4th to 6th Respondents’ Counsel noted that in the aftermath of the oil spill incident, the Respondents’ community commenced Suit No. OHC/9/1998 between HRH E. G. Ojogbo & Ors. Vs.

NAOC in 1998 and an out of Court settlement was reached; thereafter, Suit No. OHC/1/2015 between Hight Chief Ebikeseye Bipeledei & Ors. Vs. NAOC was commenced but struck out on grounds of jurisdiction and later Suit No. FHC/YNG/CS/10/2016 was also initiated and same is still pending. It is the submission of counsel that the Limitation Law of Bayelsa State is inapplicable to this suit. ​On the third issue, Counsel curiously conceded that the present issue is an abuse of Court process and the issue be resolved in favour of the Appellant.

It is the submission of Counsel that the previous suit constituted in Suit No. FHC/YNG/CS/10/2016 was commenced by the 4th to 6th Respondents in their representative capacity on behalf of Kpuruwei Family/Asitubu (Ama) Community in Gbanraun Kingdom on the same subject matter and their capacity has never been challenged by the 1st to 3rd Respondents. Counsel further argued that the parties in the present suit and the previous suit are related by blood and the reliefs being sought by the parties are the same.

RESOLUTION I must quickly say that our law does not recognize a situation where, in the absence of a cross-appeal or respondent’s notice, a Respondent will depart from its traditional role of defending the decision being appealed against by the Appellant. Certainly, as the Supreme Court had held in the case of CAMEROON AIRLINES Vs.

OTUTUIZU (2011) LPELR-827(SC), the role of the Respondent in an appeal is to defend the judgment of the trial Court, but where the Respondent is not comfortable with a finding (not the entire judgment) in the judgment which he considers fundamental, he can only do so by filing a cross-appeal.

As noted earlier, the 4th to 6th Respondents’ counsel had, while canvassing argument in connection with the issue as to whether the instant suit constitutes an abuse of Court process, urged this Court to resolve the said issue in favour of the Appellant and set aside the learned trial Judge’s decision that the present suit does not amount to an abuse of Court process. In the event that the 4th to 6th Respondents do not agree with the reasoning of the learned Judge, they ought to file a cross-appeal and not argue against the decision of the trial Judge in their Respondents’ brief of argument.

I need not say more on this point. Such a conduct borders on misconduct which made the position being argued by the said learned counsel as one involved in a subtle collusive suit in the circumstance. ​Meanwhile, in resolving the issues nominated by the Appellant and which has been adopted for determination of this appeal, I shall proceed to first consider and determine the third issue which borders on the question as to whether the present suit constitutes an abuse of Court process, having regard to the pendency of Suit No. FHC/YNG/CS/10/2016?

The position of the law which has been handed down by the apex Court is that abuse of process is the improper use of the judicial process by a party in litigation. It may occur in various ways, predominantly demonstrated by the institution of multiplicity of actions on the same subject matter between the same parties. Another incidence is the institution of actions by same parties simultaneously in different Courts even though on different grounds, where the two similar processes are used in respect of the exercise of the same right in order to achieve the same goal.

See the cases of IKINE & ORS Vs. EDJERODE & ORS (2001) LPELR-1479 (SC); ASHEY AGWASIM & ANOR Vs. DAVID OJICHIE & ANOR (2004) 18 NSCQR 359 at 36. Put simply, abuse of Court process entails the usage of the process of the Court mala fide and improperly, and in most cases, to the annoyance and irritation of another party.

Therefore, where it is found that two or more actions have been commenced before a competent Court on the same subject matter and the parties in the two suits are the same, the only inference that will be drawn is that the intention, purpose and bringing the suit before the Court, which is later in time, is to harass, irritate and annoy the other party against whom the suit was commenced; and also interfere with the administration of justice. ​In connection with the issue before this Court now, I have carefully considered the relevant constituents of Suit No.

FHC/YNG/CS/10/2016 and I found from the statement of claim filed in that suit contained in pages 85 to 88 of the record of appeal that the suit was commenced by the 4th to 6th Respondents in representative capacity as representing Gbanraun Kingdom in the Southern Ijaw LGA of Bayelsa State.

In addition, the principal relief sought by the Plaintiffs in the said suit is for an order directing the Appellant herein, to pay to the Plaintiffs the sum of N1,916,200,000.00 (One Billion, Nine Hundred and Sixteen Million, Two Hundred Thousand Naira) representing the principal sum and accrued interest of the Plaintiffs’ money deposited in an interest yielding account by the Appellant since 1998.

On the other hand, the suit leading to the present appeal commenced by the 1st to 3rd Respondents for themselves and as representing members of the Kpuruwei Family/Asitubu (Ama) Community/Settlement, Gbanraun Kingdom for declaratory and injunctive orders of Court to the effect that they are the rightful beneficiaries of the negotiated compensation money deposited by the Appellant in an interest yielding bank account plus accrued interest thereon arising from the Appellant’s oil spillage that precipitated the 1st to 3rd Respondents’ Suit No. OHC/9/98 between HRH Ojogbo & Ors. Vs. NAOC.

See pages 7 to 13 of the record of appeal. ​Premised on the above, it is evident that the parties in the present suit and Suit No. FHC/YNG/CS/10/2016 are the same. It is however noteworthy that Suit No. FHC/YNG/CS/10/2016 was commenced by the 4th to 6th Respondents in representative capacity and representing the interest of the entire Gbanraun Kingdom, which the 1st to 3rd Respondents belongs. As the learned Counsel for the Appellant rightly submitted, it is of no moment that the 1st to 3rd Respondents are not named as parties in Suit No. FHC/YNG/CS/10/2016.

In law, a representative action covers and binds person(s) who even though are not named specifically as a party, but belongs to the class represented. The 1st to 3rd Respondents in this case have expressed on the face of processes filed in the suit, that they are members of the Gbanraun Kingdom to which the 4th to 6th Respondents are representing in Suit No. FHC/YNG/CS/10/2016, even though in this case the 1st to 3rd Respondents are representing the Kpuruwei Family/Asitubu (Ama) Community.

As a matter of fact, the evidence on the face of the relevant documents contained in the record of appeal before this Court, shows that the claim in the two suits is for the recovery of the negotiated sum of money purportedly due to the respective Plaintiffs from the Appellant in the aftermath of the 1997 oil spill. If the 1st to 3rd Respondents are not pleased with the purported representation of their interest in the suit commenced at the instance of the 4th to 6th Respondents or that the 4th to 6th Respondents do not have their authority to initiate Suit No.

FHC/YNG/CS/10/2016 as they have alleged in their statement of claim in this case, the proper step to take will be to join the said suit which is pending and properly ventilate their grievances. It is not open for them to commence the present suit; that is an improper use of the judicial process.

It is my firm view, which I believe to be the correct one, that the present suit amounts to an abuse of Court process and once, as in the instant case, a Court is satisfied that processes before it, are an abuse of its processes, it should with all urgency exercise its inherent jurisdiction and dismiss the abusive action or process. Nevertheless, and out of abundance of caution, I shall consider the issue as to whether the lower Court – a Federal High Court, is competent to entertain and determine the 1st to 3rd Respondents’ claim as constituted.

The law is trite and quite elementary that provisions of the law are not to be considered in vacuo but in the context of the claim before the Court. See ITPP LTD Vs. UBN PLC [2006] 2 NWLR (Pt. 955) 483. My noble Lords, for ease of reference, the reliefs sought by the 1st to 3rd Respondents in the statement of claim filed at the lower Court are reproduced below: 1.

“A Declaration that the Plaintiffs are the rightful beneficiaries of the negotiated compensation money deposited by the 1st Defendant in an interest yielding bank account plus accrued interest arising from the 1st Defendant’s oil spillage that precipitated Plaintiff’s Suit No. OHC/9/98 between HRH Ojogbo & Ors. Vs. NAOC. 2.

A Declaration that the 2nd–4th Defendants who have no enforceable right and are not authorised by the people of Gbanraun Kingdom or the herein Plaintiffs cannot on their behalf demand, receive money or institute any suit against the 1st Defendant in respect of the money deposited by the 1st Defendant in an interest yielding bank account which is the subject matter of in this suit. 3.

An Order directing the 1st Defendant to pay to the Plaintiffs through their Solicitor, Chief Ladi Rotimi-Williams, SAN a total sum of N13,483,325,824.00 (Thirteen Billion, Four Hundred and Eighty-Three Million, Three Hundred and Twenty-Five Thousand, Eight Hundred and Twenty-Four Naira Only) being… 4. An Order directing that interest at 21% per annum on the negotiated compensation sum shall be in force until the judgment is entered and thereafter 10% interest on outstanding judgment debt until it is fully paid to the Plaintiffs by the 1st Defendant. 5.

An Order of perpetual injunction restraining the 2nd–4th Defendants, their agents, servants and/or privies from further acts of laying claim to or on behalf of the herein Plaintiffs or the entire Gbanraun Kingdom in respect of the said Plaintiffs money deposited.” The view held by the trial Judge, having had the benefit of considering the relevant averments and reliefs sought in the statement of claim and reproduced above, is that the 1st to 3rd Respondents’ action borders on a claim for entitlement to compensation for pollution and damages resulting from the mining operations and related activities of the Appellant, who is the holder of an oil pipeline license and therefore actionable in the Federal High Court.

With respect, it ought to be beyond disagreement that the case of the 1st to 3rd Respondents is predicated on two main limbs, that is, the fact that (a) the 1st to 3rd Respondents and the class they represent, are the persons entitled to be paid the negotiated compensation sum deposited into an interest yielding account by the Appellant; (b) that at the time of initiating the present suit, the Appellant has refused to release the negotiated compensation sum to the 1st to 3rd Respondents, who are the alleged beneficial owners of the said money.

It is important to reproduce the relevant portion of the statement of claim filed at the lower Court and they read as follows: “14. The Plaintiffs aver that upon failure of the 1st Defendant to comply with the Plaintiffs Solicitor’s pre-litigation letter, representatives of the Plaintiffs Kpuruwei Family instituted action at the Bayelsa State High Court in Suit No. OHC/9/98 against the 1st Defendant. 15. Plaintiffs further states that the later Chief M.E.A.

Bipeledei who is the father of the 2nd Defendant was before his demise in 2009, the 1st Defendant’s contact person/link man regarding its affairs and operations in Gbanraun Kingdom. 16. The Plaintiffs aver that the late Chief M.E.A. Bipeledei, is from Agege Compound in Aquobiri in Gbanraun Kingdom and is not a member of Kpuruwei Family, the beneficial owners and occupiers or inhabitants of the 1st Defendant’s spillage impacted area known as Asitubu (Ama) settlement/community in Gbanraun Kingdom. 17. The Plaintiffs states that the late Chief M.E.A.

Bipeledei informed them that the 1st Defendant resolved to pay only a total negotiated compensation sum of N420,000,000.00 (Four Hundred and Twenty Million Naira) in full and final settlement of all claims arising from the said spillage as against the sum of N3.5 Billion Naira demanded by the Plaintiffs, which formed part of the claims against the 1st Defendant in Suit No. OHC/9/98… 20.

The Plaintiffs aver that the 1st Defendant at all materials times is aware that the Plaintiffs are the rightful beneficiaries to compensation arising from the said spillage but rather than pay them the negotiated sum, the 1st Defendant has refused to fulfil his obligations but instead claimed that it was waiting for the determination of Suit No. OHC/9/98 claiming that the rightful Claimants to compensation in respect of the massive oil spillage is in contention. 21. The Plaintiffs further aver that the 1st Defendant by a letter dated 2nd May, 1998 addressed to Late Chief M.E.A.

Bipeledei confirmed deposit of the total negotiated compensation sum in an interest yielding account pending the determination of the suit and also, that it shall be compelled to pay the money to any person adjudged by the Court to be entitled to it even though the beneficial owners to the oil spillage impacted Asitubu settlement is not in dispute or subject to any claim… 30.

Plaintiffs state that sometime in 2015, the 2nd–4th Defendant who have no enforceable right in the res and subject matter to this suit and who are not authorised by the people of Gbanraun Kingdom or the herein Plaintiffs surreptitiously instituted a suit at the Bayelsa State High Court in a representative capacity for themselves and on behalf of the Plaintiffs who are natives of Gbanraun Community… 32.

The Plaintiffs aver that the 2nd–4th Defendants again trampling on the Plaintiffs’ right to the compensation money proceeded to the Federal High Court, Yenagoa, Bayelsa State, even though they possess no enforceable right in the res and were never authorised by the Gbanraun people commenced a fresh action in a representative capacity in Suit No. FHC/YNG/CS/10/2016 seeking for an order of Court for the money to be paid to them… 33.

The Plaintiffs further state that as at the time of filing this suit, the 1st Defendant is yet to release the negotiated compensation sum to the Plaintiffs who are the beneficial owners of the said money….” Reading the above reproduced paragraphs, can it be said that the 1st to 3rd Respondents’ suit falls within the matters or causes within the exclusive jurisdiction of the Federal High Court in terms of the provision of Section 251(1) of the Constitution.

I think the mere fact that the negotiated compensation sum is in connection with the Appellant’s oil mining activities, (the 1997 oil spill), prompted the Court into deciding that the suit can be entertained by the Federal High Court.

The learned trial Judge obviously became swayed by the fact that the 1st to 3rd Respondents are claiming for the negotiated sum purportedly agreed to be paid by the Appellant following the impact of the oil spill on the Gbanraun Community, without considering the peculiar aggregate of facts which, when combined, formed the basis of the action before the lower Court.

From the averments contained in the statement of claim, it is clear that there is obviously no dispute or contention between the 1st to 3rd Respondents on one hand and the Appellant on the other as to the quantum of compensation or degree in monetary terms, due to the 1st to 3rd Respondents.

The cause of action in the matter leading to the instant appeal stems from the alleged refusal of the Appellant to pay the negotiated compensation to the 1st to 3rd Respondents and I am inclined to say that it is immaterial that the agreement to pay the said compensation sum arose from a claim bordering on oil spillage.

What is evident, and contrary to the decision of the learned trial Judge, is that the 1st to 3rd Respondents are seeking the intervention of the Court to hold the Appellant bound to pay the sum it had committed itself to pay to the persons affected by the oil spill and the basis upon which the claims in earlier suit OHC/9/98 was compromised. I am unable to agree with the Respondents that this suit is not for the enforcement of contract. Nothing can be further from the truth.

The relevant question for the purpose of the jurisdictional test is: can the matter be decided without reference to the provisions of the Oil Pipelines Act, which contains the statutory basis upon which a claim for compensation in connection with oil and mining activities can be sustained. I am inclined to answer this in the affirmative, the matter can be effectively and effectually determined without recourse to the Oil Pipelines Act.

I am of the view, that the suit before the lower Court does not have the character of claim properly situated within the causes or matters enumerated under Section 251(1) of the Constitution. Indeed, the jurisdiction of a Court or Tribunal can never be the subject of negotiation between parties, nor can it be waived, jurisdiction cannot be conferred on a Court by consent or agreement of the parties. It is fundamental and indispensable, it is the foundation upon which decisions of Court are based, it is the footing upon which the decisions of Court are founded. See IJEBU-ODE L.G. Vs.

ADEDEJI [1991] 1 NWLR (Pt. 166) 136; UTIH & ORS Vs. ONOYIVWE [1991] 1 NWLR (Pt. 166) 166. ​In the light of this analysis, it is my respectful conclusion on this issue that the Federal High Court lacks the jurisdiction to adjudicate upon the claim as constituted before it.

In the light of the decision that the present suit amounts to an abuse of Court process and that the lower Court is not competent to adjudicate upon the 1st to 3rd Respondents’ claim as constituted, I am of the opinion that any other issue in this appeal has become academic and this Court will not waste its precious and scarce judicial time on them. The curtain shall therefore be drawn on this appeal at this point. In the circumstance, I find merit in the Appellant’s appeal and it is hereby allowed. The judgment of the Federal High Court, coram Honourable Justice J. E.

Iyang delivered on 7th May, 2019 in Suit No. FHC/YNG/CS/7/2018 is hereby set aside. The suit in the lower Court is accordingly dismissed, particularly on the ground that it amounts to an abuse of Court process. See the Supreme Court’s decision in ARUBO V. AIYELERU (1993) 8 NWLR (Pt.280) 126 AT 142 per Nnaemeka Agu, JSC Rtd of blessed memory. Parties are for these reasons, ordered to bear their respective costs of prosecuting the instant appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Kolawole, J.C.A., with nothing extra to add.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: My noble brother, GABRIEL OMONIYI KOLAWOLE, JCA afforded me the opportunity of reading in advance, the lead judgment just delivered as one of the panelists. I agree with my learned brother that the suit before the lower Court has not been properly constituted in accordance with the provision of Section 251 of the Constitution. The reasoning and conclusion contained in the leading judgment is agreed upon by me. I also find merit in this appeal and allow it. The judgment of the lower Court delivered on the 7th of May, 2019 by Hon. Justice J. E. Iyang in Suit No.

FHC/YNG/CS/7/2018 is hereby set aside. I abide by the consequential orders in the leading judgment.

Judgment

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Federal High Court, Abuja Division delivered by Hon. Justice F. O. G. Ogunbanjo on December 3rd 2020, wherein the Court dismissed the Suit No. FHC/ABJ/CS/516/2019 by the Appellant (the Plaintiff at the Court below) as an abuse of the process of the Court. The following are the questions for determination submitted and the reliefs sought by the Appellant at the Federal High Court, Abuja, from where the instant appeal emanated: ​1.

Whether or not the 1st Defendant/Respondent can approve for listing the shares/stocks of the 2nd Defendant in the 3rd Respondent’s Exchange in view of the pending suit i.e. SUIT NO FHC/L/CS/354/15 at the Federal High Court, Lagos between Dr. CHARLES D. MEKWUNYE, the Applicant herein and 1. LOTUS CAPITAL LIMITED, 2. STANBIC IBTC ASSET MANAGEMENT LIMITED, 3. MTN NIGERIA COMMUNICATIONS LIMITED, 4. HIS HOLDING LIMITED, 5. INT TOWERS LIMITED and the pending appeals i.e. SC/502/2018 and SC/503/2018 at the Supreme Court, between DR. CHARLES D. MEKWUNYE VS.

LOTUS CAPITAL LIMITED & 4 ORS, wherein the relief, among others, sought before the Supreme Court is for “AN ORDER OF INJUNCTION restraining the 3rd Defendant (MTN NIGERIA COMMUNICATIONS LTD), its agents servants, privies, employees, licencees, and/or persons acting through and for the 3rd Defendant from listing its shares in the Nigeria Stock Exchange or any globally recognized Stock Exchange pending the final determination of the appeal filed and pending in the Supreme Court, and/or the conclusion of the trial at the Federal High Court if this Honourable Court so orders” WHEREOF THE APPLICANT PRAYS THIS HONOURABLE COURT AS FOLLOWS: 1.

A DECLARATION that the 1st Defendant/Respondent does not have the right to approve for listing in the 3rd Defendant the shares of the 2nd Defendant until the final determination of the pending suit and the appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others. 2.

A DECLARATION that the 3rd Defendant does not have the right to place for listing the shares/stocks of the 2nd Defendant in the Nigerian Stock Exchange until the final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others. 3.

A DECLARATION that the 2nd Defendant cannot place its shares for listing in the Nigerian Stock Exchange until final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others. 4.

AN INTERLOCUTORY INJUNCTION restraining the Defendants/Respondents, their agents servants, privies, employees, licencees, and/or persons acting through and for them from listing the shares of the 2nd Defendant in the Nigerian Stock Exchange pending the final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others. 5.

AN INJUNCTIVE ORDER restraining the Defendants/ Respondents, their agents, servants, privies, employees, assignors, licencees and/or persons acting through and for the Respondents from putting up any notice, publication, sign, advert, notice, sign post, sign board or anything whatever which may suggest the listing of the 2nd Defendant/Respondent’s shares in the Nigerian Stock Exchange (3rd Respondent herein) by listing or introduction of Initial Public Offer, pending the final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others. 6.

AN INJUNCTIVE ORDER restraining the Defendants/ Respondents, their agents, servants, privies, employees, licencees and/or person acting through and for the Defendants/Respondents from putting up any publication, adverts, signs and/or advertising form, (written, radio, electronic or any form whatsoever) inviting the members of the public to buy or purchase the 2nd Defendant’s shares in any public offer, by listing, by introduction, Initial Public offer or any form whatsoever in Nigeria pending the final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others. 7.

AN ORDER of this Honourable Court directing the Defendants/Respondents, their privies, employees, servants, agents, affiliates, assignors, licensors and/or persons acting through and for them to maintain status quo ante regarding the 2nd Defendant (sic) shares in stock pending the final determination of the pending suits and appeals namely SC/503/2018, APPEAL NO CA/L/1349/2016 AND SUIT NO FHC/CS/354 between the Plaintiff/Applicant herein against the 2nd Defendant herein and other parties. 8.

An Order of this Honourable Court restraining the 3rd defendant from accepting for listing the shares/securities of the 2nd Defendant on its form pending the final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others. 9.

An Order of this Honourable Court restraining the 3rd defendant from listing the shares/securities of the 2nd Defendant on its form pending the final determination of the pending suit and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others. 10.

AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances. ​The facts that culminated into this appeal as garnered from the printed Record before this Court are as briefly stated hereunder: It is the position of the Appellant that he purchased 5000 units of the 2nd Respondent’s (MTN) shares through a private placement in the year 2008 through Stanbic IBTC Asset Management Ltd. as Nominee of the 2nd Respondent and Lotus Capital Limited as its agent.

It was agreed that after a period of three (3) years after the purchase, that is the year 2011, the shares purchased would be transferred to an Exit Special Purpose Vehicle (SPV) in exchange for shares in the Exit SPV which shall be a company listed on the Nigerian Stock Exchange (the 3rd Respondent) or any globally recognized Stock Exchange.

And that the 2nd Respondent failed or neglected to keep to the said agreement but rather claimed that MTN International is already quoted on Johannesburg Stock Exchange and was not willing to set up another publicly quoted company due to other “tax considerations”. Further that, the Appellant has suffered considerable loss from the several deductions from his investments made by the 2nd Respondent, including the review of nominee fees, management fees and other fees.

He claimed that Stanbic IBTC Asset Management Ltd, Lotus Capital Limited and the 2nd Respondent misrepresented facts to him which misled him into purchasing the 2nd Respondent’s shares under the private placement memorandum. He had to institute Suit No. FHC/L/CS/354/2015 but following the ruling of the Court therein, which stayed proceedings and ordered parties to go to arbitration, the Appellant appealed to this Court in Appeal No. CA/L/1349/2016 and thereafter to the apex Court in Appeal No. SC.503/2018.

According to the Respondents, while the Appellant’s Appeals subsist before the apex Court, the Appellant commenced Suit No. FHC/ABJ/CS/516/2019 vide Originating Summons which culminated into the instant appeal and sought to restrain the 2nd Respondent therein from listing the shares on the Nigerian Stock Exchange. They raised objections at the Court below that the suit was an abuse of the process of the Court which the Court sustained and in consequence dismissed the suit.

That decision has led to the instant appeal vide his Notice and Five (5) Grounds of Appeal on January 6th 2021, the Appellant being aggrieved. RELIEF BEING SOUGHT To allow this appeal and set aside the judgment of the trial Court of 3rd December, 2020 in its entirety and this Honourable Court should invoke its powers under Section 16 of the Court of Appeal Act, to determine the Originating Summons granting the reliefs claimed therein, with substantial costs to the Respondents. ​The parties in compliance with the Rules of this Court filed and exchanged their briefs of argument.

The Appellant’s brief dated and filed March 29th 2021 as well as his Replies to the 1st, 2nd and 3rd Respondents filed September 27th 2021 were settled by Dr. Charles Mekwunye Esq. who urged that the appeal be allowed. The 1st Respondent’s brief dated April 16th 2021 and filed June 16th 2021 was settled by Ogechi Ogbonna Esq. who urged that the appeal be dismissed. The 2nd Respondent’s brief dated November 8th 2021 and filed November 9th 2021 was settled by Kigai Zontong Esq. who urged that the appeal be dismissed.

The 3rd Respondent’s brief dated July 23rd 2021 and filed August 10th 2021 was settled by Mr. Abiodun Olaleru Esq. who equally urged that the appeal be dismissed. APPELLANT’S ISSUES FOR DETERMINATION a. “Whether the trial Court erred in law when he reached the perverse decision that “the subject matter of this suit before this Court is also the shares of the 2nd Defendant” and that the reliefs claimed in the instant Suit No. FHC/L/CS/516/2019 are the same with the reliefs claimed in Suit No.

FHC/L/CS/354/15 having regard to the facts of the case and the reliefs before it as presented in the originating summons (Grounds 3 and 4). b. Whether the refusal of the trial Court to consider all the processes filed by the Appellant before it in response to the preliminary objections raised by the Respondents does not constitute a breach of the Appellant’s right to fair hearing (Ground 2). c.

Whether the trial Court’s refusal to hear and determine the Appellant’s motion for mandatory Injunction dated and filed on the 7th of June, 2020 does not amount to a blatant condonation and tacit approval of all the Respondents’ act of dealing with the res subject matter of a suit before the Federal High Court and appeals before the Supreme Court, which is an act of disrespect and which is contemptuous of the trial Court in particular and the judiciary in general (Ground 5). d.

Whether or not the trial Court was right to have declined jurisdiction to hear this suit on the basis that the action is an abuse of Court in the light of Suit No. FHC/L/CS/354/2015 and the pending appeal Nos. SC/502/2018 and SC/503/2018 when it was abundantly clear that the cause of action in this suit arose in 2019 while that of Suit No. FHC/L/CS/354/2015 arose in 2011 (Ground 1).” 1ST RESPONDENT’S ISSUES FOR DETERMNIATION 1. “Whether the Honourable Court below was right when the Honourable Court found Suit No. FHC/ABJ/CS/516/2019 an abuse of Court process. 2.

Whether in view of the finding that the substantive suit filed by the Appellant was an abuse of Court, there was any legal basis for proceeding further with the suit before the Honourable Court below including the preliminary objection and application for mandatory injunction heard with the substantive suit, the suit being the live wire upon which they depend having been found to be an abuse of Court process.”

2ND RESPONDENT’S ISSUES FOR DETERMINATION 1. “Whether having regards (sic) to the materials before the trial Court, the trial Court was right when it found that the Appellant’s suit before it was an abuse of Court process 2. Whether the trial Court did not consider all the processes before it in the determination of the Respondents’ respective Preliminary Objection before the trial Court 3.

Whether having regard to the facts on record and the trial Court’s decision dismissing the suit before it for being an abuse of Court process, the trial Court was wrong when it did not consider and determine the Appellant’s Motion for Mandatory Injunction.” 3RD RESPONDENT’S ISSUES FOR DETERMINATION i. “whether the Court below was right in its judgment when it dismissed the suit having found same to be an abuse of Court process ii.

Whether this appeal is nevertheless not liable to be dismissed in view of the grounds in the Respondents (sic) Notice which the honourable trial Court did not even rely on.” ​I have carefully considered the foregoing Issues submitted for the determination of this appeal and having so carefully done, one finds that substantially all the issues are similar in content. I am therefore satisfied that the Appellant’s issues shall justly and fairly determine this appeal.

SUBMISSION ON BEHALF OF THE APPELLANT The learned Appellant’s Counsel submitted that there is no abuse of the Court process by the Appellant as the parties in the instant suit and the earlier suit are different, the Appellant being the Plaintiff in the two but the Respondents in the earlier are five (5): 1. Lotus Capital Limited 2. Stanbic IBTC Asset Management Limited 3. MTN Nigeria Communications Limited 4. HIS Holding Limited 5. INT Towers Limited And in the instant are: 1. Securities and Exchange Commission 2. MTN Nigeria Communications Limited 3.

Nigeria Stock Exchange He contended that the reliefs in the two (2) suits must be the same as well as the elements such as similar subject matter and issues must be same for there to be an abuse and in support cited the cases of R- BENKAY NGERIA LTD. V. CADBURY NIGERIA LTD. 2012 LPELR-78820 SC, CHIEF E. A. ADEFEYISAN V. MADAM LATIFAT ODEGBESAN & ANOR. 2020 LPELR 49494 CA and CENTRAL BANK OF NIGERIA V. SAW H. AHMED & Ors 2001 LPELR-837 SC amongst a host of others cited. Therefore, he submitted that the Court was wrong.

That, Suit FHC/L/CS/354/15 and Appeals SC/502/2018 and SC/503/2018 were for the declaration of ownership of the shares of the 2nd Respondent bought by the Appellant in 2008 through private placement against the Defendants/Respondents who were either privy to a contract between the Appellant herein and themselves or who are agents, servants assigns of the 2nd Respondent herein.

The instant suit on the other hand is to prevent the regulatory bodies, the 1st and 3rd Respondents from allowing the 2nd Respondent, the principal party to the contract in the erstwhile suit/appeal from destroying the res by listing the shares on the floor of the 3rd Respondent. He argued that the Court’s decision was wrong as it failed to appreciate agents and privies under the law and cited in support the case of PDP & ANOR. V. UMEH & ORS. 2017 LPELR -42023 SC.

And that the 1st and 3rd Respondents do not qualify as privies or assigns of the 2nd Respondent, therefore, the Appellant was right to have filed his Originating Summons. The learned Appellant contended that the Court failed to correctly consider reliefs 1, 2 and 4 in the Originating Summons. He submitted that the failure of the trial Court to consider applicable paragraphs of the Appellant’s Counter-affidavit and written addresses is tantamount to deprivation of his right to fair hearing as enshrined in the 1999 Constitution. In support, he cited the cases of THE STATE & ORS V.

OBA ALAIYELUWA OGUNOYE (THE OLOWO OF OWO) & ORS 1985 LPELR 3209 SC, ASIKA & ORS V. ATIJANYA 2013 LPELR 20895, G.M.O. NWORAH & SONS CO. LTD V. AKPUTA 2010 LPELR 1296 SC and Order 26 Rule 4 of the Federal High Court Rules, 2019 amongst a host of other authorities. And that the failure by the Court to expeditiously hear and determine the Appellant’s Motion on mandatory injunction and as well refer to the rejoinders placed before it by the Appellant is not a mere irregularity as it offends the principle of natural justice and fundamental rights guaranteed by the Constitution.

In support he cited the case of PRINCE YAHAYA ADIGUN & ORS V. THE SECRETARY, IWO LOCAL GOVERNMENT & ANOR. 1999 LPELR-179 SC. He therefore, submitted that miscarriage of justice had occasioned, the Court was robbed of its jurisdiction and the entire proceedings should be set aside. He argued further that the equitable principle that, equity aids the vigilant and not the indolent and the duty as a minister in the temple of justice to uphold the respectability of the Court made him to file the 2nd suit vide the application on June 7th 2019 as well as preserve the res.

He cited in support, the cases of BRITTANIA – U NIG. LTD. V. SEPLAT PETROLEUM DEVELOPMENT COMPANY LTD. & ORS 2016 LPELR-40007 SC, UBA V. ASHIMINA LTD. 2018 LPELR-43858 CA and ANI V. NNA & ORS 1996 4 NWLR PT. 440 101. In conclusion, he urged that the appeal be allowed. SUBMISSION ON BEHALF OF THE 1ST RESPONDENT The learned Counsel for the 1st Respondent submitted that the Court was right to have found the Appellant’s suit of 2019 an abuse of the process of the Court and that the decision is unassailable in law.

He urged this Court to take judicial notice of facts which were found by the Court such as follows: A. That the 2019 suit sought reliefs to restrain the listing of the 2nd Respondent’s shares on the floor of the 3rd Respondent as served on 1st Respondent on May 16th 2019. B. The motion pending in Appeal SC/503/2018 is to prevent same listing as filed February 12th 2019. C. Appeal SC/503/2018 emanated from Suit FHC/L/354/2015. D. Suit FHC/L/354/2015 was filed by the Appellant to restrain the same listing which is the same res and relief sought in Suit No. FHC/AJ/CS/516/2019.

Further that the Court was correct to have declined jurisdiction on the issue of abuse as well as the fact that it could not share jurisdiction with the apex Court on the same matter pending before the apex Court as well as the pending suit at the High Court. The learned Counsel argued that abuse of Court as herein covers any and all improper exercise of any alleged legal rights even where such rights exist, irrespective of some difference in the parties sued in each of the suits.

And that commencing the suit at the Federal High Court Abuja in 2019, seeking similar reliefs as those before the apex Court, without waiting for the decision of the apex Court on his application in the 2019 suit as well as the earlier suit in 2015 at the Federal High Court Lagos, is an abuse of the process of the Court. Therefore the Court rightly dismissed the Appellant’s suit and properly exercised its judicial discretion, he submitted. In support, he cited the cases of DINGYADI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION NO.2 2010 18 NWLR PT. 1224 P.154.

Further he submitted that this Court is also under a constitutional duty to respect matters pending before the apex Court and not interfere with the res in any application and referred to Section 235 of the 1999 Constitution and the cases of SANI V. KOGI STATE HOUSE OF ASSEMBLY & ORS 2021 6 NWLR PT. 1773 P. 422, MAKINDE V. AKINWALE 1995 6 NWLR PT. 399 P.1 and AGIP NIGERIA LIMITED V. AGIP PETROL INTERNATIONAL & ORS 2010 5 NWLR PT. 1187 P. 348.

He argued that on October 14th 2020, the Court below heard the substantive suit, preliminary objections by the Respondents which challenged the jurisdiction of the Court and all the applications by the parties and is deemed in law to have taken judicial notice of them all. And cited in support the cases of INAKOJU V. ADELEKE 2007 4 NWLR PT. 1025 P. 423, GARUBA V. OMOKHODION 2011 15 NWLR PT.1269 P. 145 and Order 29 Rule 1 of the Federal High Court Rules 2019.

He submitted that the dismissal of a substantive suit dispenses with any pending applications therein as the suit is the live wire upon which the applications exist and cited in support the cases of NWABUEZE V. NWORA 2017 NWLR PT. 1277 P. 699, MADUKOLU V. NKEMDILIM 1962 2 NSCC 34 and ARUEZE V. NWAUKONI 2019 5 NWLR PT. 1666 P.469. That the Court was not under any obligation to make distinct pronouncements on the application for mandatory injunction and there was no denial of the right to fair hearing under Section 36 (1) of the 1999 Constitution.

In conclusion, he urged that the appeal be dismissed and to uphold the decision of the Court below. SUBMISSION ON BEHALF OF THE 2ND RESPONDENT The learned 2nd Respondent’s Counsel submitted that the Court was right when it held that the Appellant’s suit was an abuse of the process of the Court having been filed during the pendency of the Appellant’s suit FHC/L/354/2015, Appeals SC.502/019 and SC. 50333/2019, Motion on Notice of February 12th 2019 and with the same subject matter, the 2nd Respondent’s shares. In support he cited the cases of SARAKI & ANOR. V.

KOTOYE 1992 LPELR-3016 SC 33, BUKOYE V. ADEYEMO 2017 1 NWLR PT. 1546 P. 173 and IN RE: NIMASA 2019 LPELR-48872 CA P. 26. He submitted that the fact is indisputable that the following are pending, Suit No. FHC/L/CS/354/2015 in respect of the shares of the 2nd Respondent, two (2) appeals, SC.502/2018 and SC.503/2018 emanated from the matter before the Federal High Court in Lagos.

And that subject matter of the suit before the Federal High Court Abuja, the Court below is also the shares of the 2nd Respondent as well as Motion pending before the apex Court filed February 12th 2019 for an order of injunction to restrain the 3rd Respondent from listing the shares of the 2nd Respondent on its floor. He argued that the Appellant did not have a right to file and maintain two (2) separate processes or actions before different Courts seeking the same purpose against the same party and cited the case of AGWASIM V. OJICHIE & ANOR. 2004 10 NWLR PT. 882 613 and DINGYADI V.

INEC NO. 1 supra. He therefore submitted that the causes of action in the two sets of proceedings are the same as they are hinged on intention or attempts by the 2nd Respondent to list its shares on the Nigerian Stock Exchange.

He asserted that the party who is the target of the two actions is the same, the 2nd Respondent and that the Appellant did not need to file a separate action in order to bound the 1st and 3rd Respondents as the order of restraint from the apex Court was capable of binding all the persons involved in the listing of the 2nd Respondent’s shares and cited in support the case of JIBRIN & ORS V. SHAIBU & ORS 2018 LPELR-47109 CA P. 24. The learned Counsel submitted further that the Court adequately considered all the processes by the parties as seen in the Record and the judgment of the Court.

In consequence, the Appellant’s contention that his right to fair hearing was breached is not supported by the Record of Appeal and in support cited the cases of MAGAJI V. NIGERIAN ARMY 2008 LPELR-1814 SC 40. That the allegation of breach of right to fair hearing is not a magic wand to be used at any instance to vitiate the decision of the Court but must be established and cited the cases of MAGIT V. UNIVERSITY OF AGRICULTURE MAKURDI 2005 19 NWLR PT. 959 211, OLOWU V. NIGERIAN NAVY 2011 10 NWLR PT. 1279 659 and UGO-NGADI V. FRN 2018 LPELR-43903 SC.

He argued that the judgment of a Court cannot be vitiated only on account of the style adopted by the Court and in support cited the case of UZUDA & ORS V. EBIGAH & ORS 2009 LPELR-34588 SC P. 23. Further that the Appellant failed to show the violation of his right as alleged and the miscarriage of justice occasioned to him by the style the decision was written. The learned 2nd Respondent’s Counsel submitted that the order of dismissal by the Court after finding that the suit was an abuse of the process of the Court did not permit it to proceed to determine any application before the Court.

And that the issue of abuse is a threshold one and goes to the root of the Court’s jurisdiction and in support cited the cases of OBIDIGWE V. IGWEMMA & ORS. 2019 LPELR-47470 CA P. 11 and USMAN V. BABA 2005 5 NWLR PT. 917 113 CA P. 132. In conclusion, he urged that the appeal be dismissed for lack of merit and to uphold the decision of the Court below.

SUBMISSION FOR THE 3RD RESPONDENT The learned 3rd Respondent’s Counsel submitted that the reliefs being sought in Suit FHC/L/CS/354/15 which is on appeal at the apex Court and those being sought in the suit in Federal High Court Abuja which culminated into this appeal are feature of forum shopping and abuse of the process of the Court and the Court was right to decline jurisdiction. In support he cited the cases of MADUKOLU V. NKEMDILIM supra and ADESOKAN & ORS V. ADEGOROLU & ORS 1997 LPELR-151 SC.

He argued that the Appellant has no locus standi to commence the pending suit against the 3rd Respondent and that the Appellant has no legal title in the subject shares of the suit as the rights in them are in Lotus Capital Limited. That, the Appellant is a busybody without any claim to any beneficial interest in the 2nd Respondent and cited in support the cases of NYESOM V. PETERSIDE 2016 7 NWLR PT. 1512 452, B. B. APUGO & SONS LIMITED V. S.O. H.M.B 2016 13 NWLR PT. 1529 206 and ARUBO V.

AIYELERU 1993 3 NWLR PT. 280 126. ​He contended that the Appellant’s Originating Summons was not issued as a concurrent process nor was it endorsed as specified in Sections 97 and 98 of the Sheriffs and Civil Process Act CAP S6 Laws of the Federation, nor was the leave of the Court sought and obtained prior to the service of the Originating Summons outside the jurisdiction of the Court.

He argued further that it is the Investments and Securities Tribunal that has exclusive jurisdiction in the matter by the provision of Sections 284 and 315 of the Investment and Securities Act CAP 124 LFN 2007 and cited in support the cases of CENTRAL SECURITIES CLEARING SYSTEMS LTD. V. NMA INVESTMENTS & SECURITIES LTD. 2018 LPELR-44706 CA and WEALTHZONE LTD. V. SEC 2016 LPELR-41808CA. In conclusion, he urged that the appeal be dismissed as lacking in merit.

THE POSITION OF THE COURT I have very carefully considered all the processes filed by the parties herein for and against this appeal and having very carefully done, I shall commence with the consideration of Issues A and D together with the findings of the Court below. For ease of reference the issues will be reproduced hereunder. ISSUE A “Whether the trial Court erred in law when he reached the perverse decision that “the subject matter of this suit before this Court is also the shares of the 2nd Defendant” and that the reliefs claimed in the instant Suit No.

FHC/L/CS/516/2019 are the same with the reliefs claimed in Suit No. FHC/L/CS/354/15 having regard to the facts of the case and the reliefs before it as presented in the originating summons”. ISSUE D “Whether or not the trial Court was right to have declined jurisdiction to hear this suit on the basis that the action is an abuse of Court in the light of Suit No. FHC/L/CS/354/2015 and the pending appeal Nos. SC/502/2018 and SC/503/2018 when it was abundantly clear that the cause of action in this suit arose in 2019 while that of suit No.

FHC/L/CS/354/2015 arose in 2011” The Court below found as contained on page 1935 of the Record that: 1. “There is a suit pending at the Federal High Court, Lagos, SUIT NO. FHC/L/CS/354/2015 in respect of the shares of the 2nd Defendant before it. 2. There are two (2) appeals pending at the Supreme Court, Appeal Nos. SC/502/2018 and SC/503/2018 emanating from the matter before the Federal High Court, Lagos Judicial Division in the said SUIT NO. FHC/L/CS/354/2015. 3. The subject matter of the suit at the Federal High Court, Lagos SUIT NO.

FHC/L/CS/354/2015 is the shares of the 2nd Defendant before this Court. 4. The subject matter of the suit before this Court is also the shares of the 2nd Defendant. 5. There is a Motion pending before the Supreme Court dated 11th of February, 2019 and filed on the 12th of February, 2019 for an Order of Injunction to restrain the 2nd Defendant before this Court and any person acting through or for the 2nd Defendant before this Court from listing the shares of the 2nd Defendant before this Court in the 3rd Defendant.

See Exhibit 23 attached to the Plaintiff’s Originating Summons.” The Court further found thus on the same page 1935 of the Record: “I have looked critically at the said Motion for Interlocutory Injunction dated 11th February, 2019 and filed on the 12th of February, 2019 pending before the Supreme Court. The rhetoric questions abusing the mind of the Court are as follows; 1. What is the effect and consequence of the prayers in the Motion on Notice for injunction pending at the Supreme Court? 2.

What is the effect and consequence of the prayers in the Originating Summons pending before this Court?” ​In answer to the foregoing questions the Court had this to say on page 1936 of the Record: “No matter how it is presented before this Court, the answers to the above two (2) questions is that the effects and consequences of the prayers before the Supreme Court and this Court are both to restrain the 2nd Defendant and any person, such as the 1st Defendant, acting through or for the 2nd Defendant from listing the shares of the 2nd Defendant in the 3rd Defendant.

The subject matter of the Motion pending before the Supreme Court is the same as the subject matter of the Originating Summons pending before this Court which simply put is to stop the shares of the 2nd Defendant from being listed by the 1st Defendant on the floor of the 3rd Defendant.” ​The Court opined thus on page 1936 of the Record as a result of its finding: “The Plaintiff having filed that Motion before the Supreme Court ought to have waited for a decision from the Supreme Court and not institute another fresh action on the same subject matter in respect of the same shares of the 2nd Defendant before this Court.

This Court cannot share jurisdiction with the Supreme Court and cannot consequently determine an issue already pending before the Supreme Court or make orders in respect of an issue that is pending before the Supreme Court.” Having taken the pains and calmly to read through all the processes before this Court filed by the parties, one agrees with the Court below that the issue whether or not the Appellant’s suit is an abuse of the process of the Court stands out amongst any other issues in their submission and for what it entails must be given priority and dealt with first hereinbefore any other questions raised.

Therefore, the pertinent question is whether or not the Appellant’s suit of 2019 is an abuse of the process of the Court below as found by the Court. In order to properly and with ease compare the subject matter and contents of the previous suit at the Federal High Court, Lagos and the two (2) appeals pending before the apex Court, the reliefs being sought at those Courts are hereunder reproduced.

The following are the reliefs sought by the Appellant at the Federal High Court, amongst others: (h) “A Declaration that the Defendants cannot by any Agreement change the character and nature of the Plaintiff’s investment from MTN Linked Units any other form of investment in any other company or companies or in the combination of 3rd, 4th or 5th Defendant (sic). (i) A Declaration that the Plaintiff is entitled to be registered by the 2nd Defendant as the holder of 5000 units MTN Nigeria Linked Units. (j) A Declaration that the act of the 3rd, 4th & 5th Defendants that will change the character and form of the Plaintiff’s investment in the MTN Linked Unit amounts to an inducement to the 1st and 2nd Defendants to breach the contract between the Plaintiff and the 1st & 2nd Defendants. (q) An Order of this Honourable Court restraining the 3rd defendant from divesting its shares either to the 4th or 5th Defendants and/or any other company that will necessitate any change in the character and form of the Plaintiff’s investment of 5000 Units of MTN Nigeria Linked units. (r) An Order directing the reversal of any change in the Character and form of investment of the Plaintiff in the MTN Linked units to any other investment in any other company or combination of companies. 2.

Whether any action of the 1st Defendant listing the shares/stocks of the 2nd Defendant for sale in the 3rd Respondent Exchange by introduction or Initial Public Offer or otherwise offering the 2nd Respondent’s shares to the public is proper and valid in law in view of the listed suit and appeals and the reliefs sought under issue 1 above?” The relief being sought amongst others vide the appeals at the apex Court: “AN ORDER OF INJUNCTION restraining the 3rd Defendant (MTN NIGERIA COMMUNICATIONS LTD), its agents servants, privies, employees, licencees, and/or persons acting through and for the 3rd Defendant from listing its shares in the Nigeria stock exchange or any globally recognized stock exchange pending the final determination of the appeal filed and pending in the Supreme Court, and/or the conclusion of the trial at the Federal High Court if this Honourable Court so orders.” See pages 3, 4, 5, 6 and 7 of Volume 1 of the Record and pages 1930-1934 of Volume 3 of the Record before this Court.

One has reproduced the foregoing for ease of reference, comparison and better appreciation of the contents and reliefs contained in the prayers and orders being sought at the Federal High Court, Lagos, the appeals at the apex Court and the reliefs before the Federal High Court, Abuja, from where the instant appeal has emanated. Abuse of the process of the Court is described thus by the apex Court in the case of CPC & ANOR v.

OMBUGADU & ANOR (2013) LPELR 21007(SC) per Nguta, JSC as he then was: “The legal concept of the abuse of the judicial process or the abuse of the proceedings of the Court is very wide. It is of infinite variety and it does not appear that the category can be closed … only a process filed in Court can constitute abuse of Court process”. This Court in the case of HONEYWELL FLOUR MILLS PLC V.

ECOBANK 2019 LPELR-47503 CA also described abuse of the process of the Court as follows per Georgewell, JCA thus: “Now, the term abuse of Court process is often seen to be synonymous with multiplicity of suits, but though that in a way is a correct proposition of the law, yet abuse of Court process is much more than mere multiplicity of suits. In other words, multiplicity of suits is not the only way by which abuse of Court process could be constituted.

Simply put, and for lack of a precise or concise definition, the term abuse of Court process denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise or concise definition.

This is rightly and arguably so because what would constitute or amount to abuse of Court process is very diverse, imprecise and thus subject to infinite or indefinite considerations.” It is also explained in the case of OGBORU & ANOR v. UDUAGHAN & ORS 2013 LPELR-20805 SC as follows: “It involves an improper use of judicial process by a party in litigation, see Agwasim V. Ojichie (2004) 10 NWLR (Pt. 882) 613 at 624-625. Furthermore, the concept is also characterized as an action initiated without a just or reasonable cause.

It merely takes an undue advantage of the reason that the process is available for indulgence. It is also a situation where the law is wrongly interpreted for purpose of accommodating actions in bad faith. It impugns the dignity of the Court. Further still, and in the legal parlance, the phrase “abuse of judicial process” is generally employed when a party improperly uses to the irritation and annoyance of his opponent the efficient and effective administration of justice.

An example is where a multiplicity of actions on the same subject matter are instituted against the same opponents on the same issues.” Three (3) essential ingredients which the Courts over time have assisted themselves with when considering whether or not a suit is an abuse of the process of the Court are as follows: a) There must be, at least, two matters filed in two different Courts. b) The said different suits are instituted with the goal of pursuing the same rights (even though on different grounds). c) The subject matter and/or the questions for determination in the two suits must be substantially the same.

See the cases of OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (PT. 966) 205 SC and HONEYWELL FLOUR MILLS PLC V. ECOBANK (2019) LPELR-47503 (CA).

​As it is the settled position of the law, the concept of abuse of the process of the Court is not only in the multiplicity of actions, even where the party has a right of action but also in the manner employed for the exercise of the right of the party who is exercising such right.

In the light of the foregoing and having very carefully considered the processes for and against by the parties herein, the foregoing reliefs being sought in afore stated suit and appeals as well as Suit FHC/ABJ/CS/516/2019, the latest filed by the Appellant which culminated into this appeal along- side afore stated three (3) essential ingredients for determination whether or not there is an abuse of the Court’s process, one is of the considered view and humbly that the process of the Court has been abused by the Appellant.

It is important to state that from the pending matters filed by the Appellant, it may appear that the parties are not the same, in my view and humbly, all the parties in all the pending matters are connected one way or the other particularly with the subject matter, the 2nd Respondent’s shares and the one main prayer of restraint against listing or dissipating the shares. One is unable to disagree with the finding of the Court below. ​That being the position, the law is firm that once a matter is found to be an abuse of the process of the Court, it qualifies for that reason, to be dismissed.

One therefore cannot but agree with the Court when it dismissed the Appellant’s matter and made no pronouncement on the Appellant’s application for mandatory injunction. I am also unable to find that the right of the Appellant to fair hearing has been denied in any way. Indeed, the Court is not permitted to blow hot and cold, cannot approbate and reprobate. To have held that there was abuse automatically precluded the Court from entertaining the matter any further and to what end would the Court have proceeded.

In the result, this appeal cannot be allowed it fails and is accordingly hereby dismissed. In consequence, the judgment of the Court below delivered on December 3rd 2020 by Hon. Justice F. O. G. Ogunbanjo is hereby affirmed.

ADEBUKOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had read through the draft copy of the judgment just delivered by my learned brother, WILLIAMS DAWODU, JCA, and found that Her Lordship resolved all the issues involved in this appeal properly. It is clear that the definition of what constitutes an abuse of Court process is ad infinitum. That means, depending on the special circumstances of a case instituted afresh and anew, whether or not it will amount to an abuse of Court process, the facts, and evidence, both documentary and orally adduced before the Court needs to be carefully perused.

I am satisfied that my learned brother has carefully and thoroughly set out the claims in the respective Courts’ cases as well as the reliefs sought, and in my respectful view, arrived at the inevitable conclusion that they were connected and to the same effect. As regards the submission that the Appellant herein will be denied fair hearing, I am satisfied based on the reasoning set out in the main judgment that such breach did not occur. Therefore, I without hesitation abide by the judgment delivered by my learned brother and accordingly dismiss this appeal.

To this end, the judgment delivered by Honorable Justice F.O.G. Ogunbanjo on the 3rd of December 2020 is hereby affirmed by me.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother, E. O. WILLIAMS-DAWODU, JCA in this matter. I agree entirely with his Lordship’s argument and conclusion that the appeal be dismissed.

Judgment

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Abuja Division, Coram: I. E. Ekwo J, in Suit No. FHC/ABJ/CS/1636/2021: Chief Callistus Okafor V. Barrister Julius Abure & Ors delivered on 16/6/2022, in which the lower Court ordered the Appellant to file his Counter-Affidavit to the 1st Respondent’s Originating Summons within 7 days from 16/6/2022 and adjourned the Suit to 30/6/2022 for hearing.

The Appellant, who was the 6th Defendant before the lower Court, was peeved by the said ruling and had promptly appealed against it vide his Notice of Appeal filed on 24/6/2022 on six grounds of appeal. See pages 445 – 455 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 30/6/2022. The Appellant and the 1st Respondent filed and exchanged their respective appellate briefs. The 2nd – 14th Respondents did not file any brief.

The Appeal was heard on 20/7/2022, where learned counsel for the Appellant and the 1st Respondent adopted their respective briefs as their arguments in this Appeal. The Appellant was represented by Abdulaziz Ibrahim, Esq., appearing with Mukhtar Bunza, Esq., The 1st Respondent was represented by C. J. Edemeka, Esq., appearing with Victor Okwudiri Esq. The 2nd – 4th Respondents were represented by Alex Ejesieme SAN, appearing with C. S. Uzodike, Esq., and E. C. Ezeh, Esq. The 6th Respondent was represented by Kehinde Edun, Esq.

The 7th – 14th Respondents were represented by Marshall Abubakar, Esq. The 5th Respondent, though duly served with hearing notice on 19/7/2022, did not participate at the hearing of this appeal. By an Originating Summons filed before the lower Court, the 1st Respondent as Claimant sought against the Appellant and the 2nd – 14th Respondents as Defendants the determination of the following question, namely: 1.

Whether the purported National Executive Council (NEC) meeting of the defendant held on or about the 9th day of October, 2018 at APTEC Hotel, Shiroro road, Minna, Niger State of Nigeria was in brazen disregard of the consent judgment of this Honourable Court delivered on the 20th day of March, 2018 on the one hand and in contravention of the Constitution of the 5th Defendant and therefore all decisions taken therein liable to be set aside. 2.

Whether the purported National Convention of the 5th defendant held on the 10th day of June, 2019 was a brazen violation of a valid consent judgment of this Court on the one hand and a contravention of the constitution of the 5th defendant and therefore all decisions taken therein liable to be set aside 3.

Whether the purported National Executive Council (NEC) meeting of the 5th defendant held on or about the 29th March, 2021 in Benin City, Edo State of Nigeria was in contravention of both the consent judgment of this Court and the Constitution of the 5th Defendant and therefore all decisions taken therein liable to be set aside. Upon the answer to the above questions in the affirmative, the 1st Respondent claimed against the Appellant and the 2nd – 14th Respondents the following reliefs, namely: 1.

A Declaration that the purported National Executive Council (NEC) meeting of the 5th Defendant held on or about the 9/10/2018 at ARTEC Hotel, Shiroro Road, Minna, Niger State was in brazen disregard of the consent judgment of this Court delivered on the 20/3/2018 on the one hand and in contravention of the Constitution of the 5th defendant and therefore decisions taken therein liable to be set aside. 2.

A Declaration that the purported Convention of the 5th Defendant held on the 10/6/2019 was a brazen violation of valid consent judgment of the Court on the one hand and a contravention of the constitution of the Defendant and therefore all decisions taken thereof liable to be set aside. 3.

A Declaration that the purported National Executive Council (NEC) meeting of the 5th Defendant held on or about the 29/3/2021 in Benin City, Edo state Nigeria was in contravention of both the consent judgment of this Court and the constitution of the 5th Defendant and therefore all decisions reached therein liable to be set aside. 4.

An Order of Perpetual injunction restraining the 1st, 2nd and 3rd defendants and all other officers and/or appointees of the 5th defendant who were appointed/elected at the purported National Executive Council meeting of the 5th Defendant held in Benin city (in violation of the consent judgment of this Court and in contravention of the Constitution of the 5th defendant) from parading and continuing to hold and parade themselves either individually or collectively as the Chairman, Secretary or National officers or members of the National Executive Committee or National Working Committee of the 5th Defendant. 5.

An Order restraining the 4th Defendant from according or continuing to accord any form of recognition to the 1st, 2nd and 3rd Defendants including any or all of the so called or purported National officers, the members of both the National Executive committee and National Working Committee of the 5th Defendant elected or appointed at the purported National working Committee of the 5th Defendant held in Benin City on the 29/3/2021 in violation of the consent judgment of this Court and in contravention of the 2019 Constitution of the 5th Defendant. 6.

An Order appointing the Plaintiff, being the duly recognized and validly appointed deputy National Chairman as the Acting National Chairman of the 5th Defendant in the absence of a National Chairman. 7. An Order mandating the Plaintiff upon being appointed as the Acting National Chairman to give leadership and direction to the 5th Defendant particularly and including the converting and presiding over the meeting of the National, Convention, National Executive Council and National Working Committee in collaboration with the 5th – 14th Defendants. See pages 3 – 76 of the Record of Appeal.

BRIEF STATEMENT OF FACTS The 1st Respondent had as Claimant instituted an action by means of an Originating Summons claiming several reliefs ordering on the leadership of the 6th Respondent, Labour Party, at the National level and had predicated his right to these reliefs on an earlier Consent Judgment of the lower Court delivered on the 20/3/2018 per Gabriel Kolawole J, (as he then was), in Suit No FHC/ABJ/CS/866/2018; Labour Party & Ors v Comrade Salisu Mohammed & Ors.

It would appear that the 1st Respondent was unable to immediately serve the Originating Summons on the 6th Respondent and had sought and obtained the leave of the lower Court to do so by means of substituted service on the 6th Respondent and also on some of the other Respondents. See pages 148 – 154, 438 – 441, 434 – 438 and 442 – 444 of the Record of Appeal. ​ The parties were yet to file and exchange their processes before the lower Court, when the matter came up before the lower Court on 16/6/2022.

The Appellant had requested for 30 days within which to file his Counter-Affidavit to the 1st Respondent’s Originating Summons, but the lower Court declined and rather directed and or ordered the Appellant to file his Counter-Affidavit to the Originating Summons of the 1st Respondent within 7 days from the 16/6/2022 and adjourned the Suit to 30/6/2022 for hearing, hence this appeal. See pages 434 – 438 and 445 – 455 of the Record of Appeal. ISSUES FOR DETERMINATION In the Appellant’s brief, four issues were distilled as arising for determination from the six grounds of appeal, namely: 1.

Whether having regards to the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the subject matter of the 1st Respondent’s suit which borders on intra-party affairs is within the jurisdiction of the lower Court and/or justiciable? (Distilled from Grounds 4 and 6) 2.

Whether in view of the provisions of Order 7 Rule 1 and Order 13 Rule 49 of the Federal High Court (Civil Procedure) Rules 2019, the lower Court has the powers to abridge time within which the Appellant is entitled to file his Counter-Affidavit to the 1st Respondent’s Originating Summons filed on 23/12/2021? (Distilled from Grounds 1 and 2) 3. Whether the lower Court has the vires to interpret the consent judgment in Suit No. FHC/ABJ/CS/866/2018 – Labour Party & Ors V Comrade Salisu Mohammed & Ors? (Distilled from Ground 5 of the notice of appeal). 4.

Whether in view of the provisions of Sections 97, 98 and 99 of the Sheriffs & Civil Process Act, 2004 and Order 3 Rules 19 & 20, and Order 6 Rule 2 of the Federal High Court (Civil Procedure) Rules 2019, the 1st Respondent’s suit is not incompetent and ought to be struck out? (Distilled from Ground 3 of the notice of appeal). In the 1st Respondent’s brief, three issues were distilled as arising for determination in this appeal, namely: 1.

Whether the lower Court was wrong in abridging the time within which the Appellant and the 2nd – 14th Respondents herein were to file their respective responses to the Originating Summons at the lower Court, and in setting down the Originating Summons for hearing on the 30/6/2022, and thereby occasioned a miscarriage of justice? (Distilled from Grounds 1 and 2) 2.

Whether the lower Court lacked the jurisdiction to entertain the 1st Respondent’s Originating Summons by virtue of the mode of service of the said Originating Summons and other processes in the Suit on the Appellant herein? (Distilled from Ground 3) 3.

Whether the lower Court erred in assuming jurisdiction to set down the Originating Summons for hearing, especially in the absence of any Notice of Preliminary Objection by the Appellant challenging the jurisdiction of the lower Court to entertain the Suit? (Distilled from Grounds 4, 5 and 6) I have taken time to consider the reliefs claimed by the 1st Respondent and the Affidavit in support of the Originating Summons. I have also reviewed the facts and circumstances of the proceedings before the lower Court on 16/6/2022.

I have further considered the submissions of learned counsel to the parties in their respective briefs in the light of both the claims of the 1st Respondent and the order or directive of the lower Court made on 16/6/2022 and appealed against by the Appellant. I am of the view that the proper issues arising for determination in this appeal are the four issues as distilled in the Appellant’s brief, a consideration of which, in my view, would invariably involve a consideration of the three issues as distilled in the 1st Respondent’s brief.

I shall consider the issues for determination ad seriatim, commencing with issue one for determination predicated on the competence or otherwise of the 1st Respondent’s Suit, and thereafter I shall proceed, depending on the resolution of issue one for determination and if need be, to consider issues two, three and four.

ISSUE ONE Whether having regards to the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the subject matter of the 1st Respondent’s suit which borders on intra party affairs is within the jurisdiction of the lower Court and/or justiciable? (Distilled from Grounds 4 and 6) APPELLANT’S COUNSEL SUBMISSIONS In his submissions on issue one, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that jurisdiction is fundamental to adjudication and a defect in competence is fatal to adjudication and contended that in determining whether or not a Court has jurisdiction to entertain a cause or matter, it is the Plaintiff’s claim or reliefs as endorsed in the Writ of Summons or Originating Summons that will be considered and urged the Court to hold that the claim of the 1st Respondent bordering on the alleged action of the 2nd – 4th Respondents to have convened an alleged wrongful convention of the 6th Respondent in purported violation of a consent judgement and Constitution of the 6th Respondent, after which they convened a wrongful National Executive Council meeting wherein the 2nd Respondent was purportedly wrongfully declared as the National Chairman of the 6th Respondent, when the 1st Respondent was the rightful person to assume the position of Acting Chairman of the 6th Respondent are all issues squarely within the internal affairs of the 6th Respondent and therefore, not justiciable and thereby rendered the 1st Respondent’s Suit incompetent and to allow the appeal and strike out the 1st Respondent’s Suit for being incompetent, and thereby depriving the lower Court of its jurisdiction.

Counsel referred to Section 251(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and relied on Federal Polytechnic, Offa V. UBA Plc (2014) ALL FWLR (Pt. 737) 739 AT p. 771, Shell Nigeria Ltd V. Dec Oil & Gas Ltd (2011) FWLR (Pt. 580) 1350 AT P. 1365, 7UP Bottling Co. Ltd V. Abiola & Sons Bottling Co. Ltd (2001) FWLR (Pt. 70)1611 AT p. 1648, Saleh V. Monguno (2006) FWLR (Pt. 332) 1411, Madukolu V. Nkemdilim (1962) 2 SCNLR 341, Duru V. FRN (2019) All FWLR (Pt. 985) 404 AT p. 430, Tukur V. Government Of Gongola State (1989) 3 NSCC 225, Sen. Yakubu Lado & Ors V.

Congress For Progressive Change & Ors (2011) LPELR – 8254 (SC), Statoil (Nig) Ltd V. Inducon (Nig) Ltd (2021) 7 NWLR (Pt. 1774), CGC Nig Ltd V. Asaagbara (2001) 1 N.W.L.R (Pt. 693) 159.

It was also submitted that there is no law which empowers the lower Court adjudicate over the affairs of political parties, except for pre-election matters, and the claims of the 1st Respondent do not fall within any of the ambit of the provision of the law providing for intervention by the Courts and contended in law any claim, like the ones being claimed by the 1st Respondent, that borders on the internal and domestic affairs of a Political party are non- justiciable and urged the Court to hold that the jurisdiction of the lower Court was thereby ousted in matters dealing with internal affairs or resolution of a Political party regarding nomination or leadership of that Political party and to allow the appeal and strike out the 1st Respondent’s Suit for being incompetent.

Counsel referred to Section 285 (14) of the Constitution of the Federal Republic of Nigeria, 1999 as (amended), Sections 8(14) and 29(5) of the Electoral Act 2022, and relied on PDP V. KSIEC (2006) 3 NWLR (Pt. 968) 565, Onuoha V. Okafor (1983) 2 SCNLR 244, Agi V. PDP (2017) 17 NWLR (Pt. 1595) 386, Ufomba V. INEC (2017) 13 NWLR (Pt. 1582) 181, Chief Jude Okeke V. APGA & Ors (SC/CV/686/2021), APC V. Moses (2021) 12 NWLR (Pt 1796) 278, Ufomba V.

I.N.E.C (2017) 13 N.W.L.R (Pt. 1582) 181. 1ST RESPONDENT’S COUNSEL SUBMISSIONS In his submissions on issue three, which I have taken time to review in its entirety, learned counsel for the 1st Respondent had submitted inter alia that all the issues raised by the Appellant under his issue three for determination are issues that go to the substance of the 1st Respondent’s suit, and, as such, are not worthy of an interlocutory appeal as the instant one, and contended that the Appellant having not filed any preliminary objection before the lower Court to ventilate their reservations about the jurisdiction of the lower Court to entertain the Suit, cannot be heard on these issues of jurisdiction in the absence of a Notice of Preliminary Objection and urged the Court to hold that even if the Appellant had filed a Notice of Preliminary Objection challenging the jurisdiction of the lower Court to entertain the 1st Respondent’s Suit, by the rules of the lower such preliminary objection is to be heard alongside the substantive Suit and to dismiss the appeal for lacing in merit.

Counsel referred to Order 29 of the Federal High Court (Civil Procedure) Rules 2019., and relied on Isah V. INEC (2016) 18 NWLR (Pt. 1544) 175 AT p. 215, Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 427 AT p. 684.

APPELLANT’S COUNSEL REPLY SUBMISSIONS In his reply submissions, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that since issue one deals with issues of jurisdiction, it can be raised at any stage of the proceedings and even for the first time on appeal as rightly done by the Appellant in this appeal and contended that learned counsel for the 1st Respondent failed to make any submission contrary to the incompetence of the 1st Respondent’s Suit and urged the Court to hold that the 1st Respondent is grossly incompetent and should be struck out to avoid embarking on mere nullity in the absence of jurisdiction.

Counsel relied on Garba V. Mohammed (2017) All FWLR (PT. 867) 420, Petrojessica Enterprises Ltd & Anor V. Leventis Technical Company Ltd (1992) 5 NWLR (PT. 244) 675, Owoniboys Technical Services Ltd. V. John Holt Ltd (1991) 6 NWLR (PT. 199) 550, S.P.D.C N. L V. Ejebu (2013) ALL FWLR (Pt. 703) 2029 AT p. 2047.

RESOLUTION OF ISSUE ONE My Lords, if I understood what the learned counsel for the 1st Respondent had said in the 1st Respondent’s brief under issue three in relation to the Appellant’s issue one, and I think I did understand him, his entire submission was that since the Appellant had not filed a Notice of Preliminary Objection before the lower Court, the issues of jurisdiction raised under issue one in this appeal are merely non-sequitur and should be discountenanced by this Court.

He had contended further that in law under the rules of the lower Court even if the Appellant had filed a Notice of Preliminary Objection, it would be heard together with the 1st Respondents’ Suit, and therefore, in his view, these issues are premature at this stage of this interlocutory appeal. In law, jurisdiction is the authority a Court has to entertain an action or matter brought before it.

It is thus fundamental to adjudication and without it a Court would lack the power to entertain a Suit over which it had not the requisite jurisdiction, since to do so would amount to a nullity, no matter how well conducted the proceedings might be or how sound the resultant judgment or decision might be. It is the claim of the Claimant that ordinarily determines the jurisdiction of the Court and therefore, once the claim of a Claimant is either outside the subject matter or territorial or other legal jurisdiction of the Court, it is incompetent and must be put or brought to an end.

See Madukolu V Nkemdilim (1962) 1 All NLR 58 AT p. 595. See also Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284, Andrew V. Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) per Sir Biobele Abraham Georgewill JCA. In the instant appeal, the Appellant’s issue one for determination, which was adopted as the issue one for determination by this Court, is one raising the issue of jurisdiction, which in law is both radical and fundamental to adjudication by any Court of law.

Thus, it can be raised any stage of the proceedings and indeed, even in any manner, including viva voce. The issue of jurisdiction is far too important to be limited to or confined to or circumscribed either by proceedings before the lower Court or even to grounds of appeal, since it can even be raised suo motu by the Court. So, for instance if this Court perceives an appeal before it is incompetent, must it refrain from raising it because it does not emanate from any of the Appellant’s ground of appeal or that it has not been raised before the lower Court?

In other words, if this Court raises the issue of jurisdiction on the face of the processes and or claims filed before the lower Court but there is no ground of appeal or record of the proceedings of the lower Court to predicate it upon, would such an issue be considered incompetent? I think not!

I hold therefore, issue one for determination being an issue of jurisdiction, and arising from Ground 4 of the Notice of Appeal, and questioning the issue of both the competence of the 1st Respondent’s Suit and the jurisdiction of the lower Court, having been validly raised in this appeal, it must be determined by this Court. See Major Concept Ltd & Anor V. Eze (2020) LPELR – 50548 (CA). See also Agricultural Development Corporation V. Okedi (2004) 1 1 NWLR (Pt. 884) 369 AT pp. 379 – 380.

In the circumstances therefore, but very regrettably, the learned counsel for the 1st Respondent had failed and or neglected to offer any response to the issue of jurisdiction raised by the Appellant. In law, the failure of the 1st Respondent to make any counter submission to the challenge to the competence of the 1st Respondent’s Suit before the lower Court simply amounts, in my view, to a concession by the 1st Respondent that it is indeed true that his Suit before the lower Court was incompetent as urged upon us by the Appellant.

This is so because in law, where one party is duly served with the arguments of the other party and he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr. Arthur Nwankwo & Ors V.

Alhaji Uniaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC, (as he then was but later CJN) had held inter alia thus: “It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.” See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR-45528(CA) AT pp. 99 – 102, per Sir Biobele Abraham Georgewill JCA, Ahmed V. Ahmed (2013) 41 WRN 1, Dairo V.

Aderinoye (2013) 50 WRN 111. Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus, the failure of one party to counter the arguments of the other party alone does not ipso facto, and without more, confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Elephant Group Plc V.

National Security Adviser & Anor (2018) LPELR-45528(CA) AT pp. 99 -102, per Sir Biobele Abraham Georgewill JCA, Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80, Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80, Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450, Elelu Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423, Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.

It is therefore, only in deference to the above position of the law and the overriding need to do substantial justice that I intend to proceed to consider and resolve the challenge to the competence of the 1st Respondent’s Suit as canvassed under issue one for determination in the Appellant’s brief.

Now, by Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it is provided inter alia as follows: “For the purpose of this Section, “pre-election matter” means any suit by: An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of Political Parties and the provisions of the guidelines of a Political Party of the conduct of party primaries has not been complied with by a Political Party in respect of the selection or nomination of candidates for an election;

An aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any other Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and;

A Political Party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidates from participating in an election or a complaint that the provisions of the Electoral Act or other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of Political Parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.” It appears to me, and I so hold, the claim of the 1st Respondent bordering on the action of the 2nd – 4th Respondents to have convened an alleged wrongful convention of the 6th Respondent in violation of a consent judgment and the Constitution of the 6th Respondent, and further the claim that they convened a wrongful National Executive Council meeting wherein the 2nd Respondent was purportedly wrongfully declared as the National Chairman of the 6th Respondent, when the 1st Respondent was the rightful person to assume the position of Acting Chairman of the 6th Respondent, are all issues squarely within the internal affairs of the 6th Respondent.

These issues are therefore, clearly not justiciable.

My Lords, I have skimmed and scanned through the provision of Section 285 (14) (a) – (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the provisions of Sections 8(14) and 29(5) of the Electoral Act 2022 as well as the state of decided authorities on this issue to see if the claims of the 1st Respondent fall within the jurisdictional competence of the lower Court by virtue of any of these statutory provisions, or indeed any other law, and I find that they are clearly outside the jurisdictional competence and remit of the lower Court to validly adjudicate upon.

The claim of the 1st Respondent from his own showing and as endorsed by him on his Originating Summons is clearly one involving the internal affairs of the 6th Respondent, Labour Party, a registered political party in Nigeria. The claims do not at all fall within any of the ambit of the provision of the law providing for intervention by the Courts. The claims border on the internal and domestic affairs of the 6th Respondent, a political party, and are therefore, non-justiciable.

They are thus, incompetent and rendered the 1st Respondent’s Suit utterly incompetent and thereby robbed the lower Court of any jurisdiction to hear and determine the 1st Respondent’s Suit. In law, neither are the internal affairs nor decisions of a political party, regarding strictly, the appointment or even election of their leadership the business of the Courts. In APC V.

Moses (2021) All NWLR (Pt. 12) p. 495 AT pp. 542 – 543, the purport and effect of the what would amount to a pre-election matter as to confer on the lower Court the jurisdiction to intervene were exhaustively considered by the Supreme Court.

The Apex Court had per Jauro JSC, stated inter alia thus: “…In determining what a pre-election matter is, recourse must be made to the statutory definition of the phrase “pre-election matter” as provided for under Section 285 (14) (a) – (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) … From the statutory definition of pre-election provided above, I am persuaded to disagree with counsel for the Respondents that the action culminating into the instant appeal is a pre-election matter…” Thus, by Section 285(14) (a) – (c) of the Constitution of Nigeria 1999 (as amended) justiciability is conferred only on pre-election matters preparatory to an election and therefore, generally, it arises from Political party primaries which must be conducted in line with the party’s Constitution and Guidelines.

So, is an election or convention solely for the purpose of election and or appointment of leaders of the 6th Respondent, at whatever level of hierarchy of the said political party or is the alleged breach of a judgment of the lower Court, entered whether by consent or otherwise, a pre-election matter or matter over which a fresh action as distinct from enforcement processes, can be regarded as justiciable in law? I think not!

So, is an election or convention by whatever name so called by a Political party, such as the 6th Respondent to elect and or appoint or select its leaders and or officials, such as claimed by the 1st Respondent, merely an internal affair of a Political party and thus non – justiciable in law?

I think so! ​In law, issues arising from such exercise for the election and or selection or appointment of officials and leaders of a Political party is purely an intra – party dispute subject to the will of the majority rule of the Political party, which is simply a voluntary organization, and thus not justiciable in law. See Onuoha V. Okafor (1983) 14 NSCC 494. See also APC V. Moses (2021) All NWLR (Pt. 12) 595, Eyitayo Jegede V. INEC & Ors (2021) LPELR – 55481 (SC), Hon. Olayide Adewale Akinremi & Anor V.

Muttaka Bala Suleiman & 17,908 Ors (2022) LPELR – 56903 (CA) per Sir Biobele Abraham Georgewill JCA.

The complaint of the 1st Respondent as well as his claims are purely intra-party disputes based on the 6th Respondent’s own internal affair over which neither the lower Court nor even this Court has any jurisdiction whatsoever to meddle and interfere with how the Labour Party, the 6th Respondent, runs and manages its own internal affairs. See Onuoha V. Okafor (1983) 14 NSCC 494, where the Supreme Court had stated inter alia thus: “A party is like a club, a voluntary association… Members join of their own free will… The party’s decision is final over its own affairs.

Members of a Party would do well to understand and appreciate the finality of a party’s decision over its domestic or internal affairs.” See also Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17, 908 Ors (2022) LPELR 56903 (CA) per Sir Biobele Abraham Georgewill JCA, Ufomba V. INEC (2017) 13 NWLR (Pt. 1582) 175, Peoples Democratic Party V. Ogundipe (2018) LPELR – 43887, Terver Kakih V. People Democratic Party and Ors (2014) 15 NWLR (Pt. 1430) 374 AT pp. 413 – 414.

Interestingly, in as recent as February 2022, a case with similar facts in relation to leadership tussles in Political Parties, this time the Kano State Chapter of the APC, confronted this Court on the proper scope of justiciability or non – justiciability of internal affairs of a Political Party in Nigeria in Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17, 908 Ors (2022) LPELR – 56903 (CA).

Upon a thorough review of all the extant decisions of the Apex Court, we came to the conclusion, same as already earlier held in this judgment, that a claim bordering on the internal affairs of a Political Party, no matter how ingeniously crafted, is not justiciable. The law is far too settled on this and there does not seem to be any more room for rigmarole on it. See Hon. Olayide Adewale Akinremi & Anor V. Muttaka Bala Suleiman & 17, 908 Ors (2022) LPELR – 56903 (CA) per Sir Biobele Abraham Georgewill JCA.

Happily, the above judgment went on appeal to the Apex Court, and has since been affirmed by the Supreme Court. We neither have reason to depart from this our earlier decision nor the liberty to refuse to follow the several decisions of the Supreme Court on this issue, including the heart-warming affirming of our earlier judgment delivered earlier this year. I have taken time to scrutinize the depositions, reliefs and the subject matter of the claims of the 1st Respondent as Claimant.

It is very obvious to me that the claims as endorsed on the 1st Respondent’s suit are not for any reliefs bothering on any pre-election matters, but is clearly and squarely on the issue of leadership of the 6th Respondent, Labour Party, as to the entitlement of the 1st Respondent to be appointed as the Acting Chairman of the 6th Respondent as against the 1st Respondent, and therefore, non-justiciable and thus rendered the 1st Respondent’s Suit incompetent. ​ In the circumstances therefore, issues one for determination is hereby resolved in favour of the Appellant against the 1st Respondent.

Having therefore resolved issue one for determination in favor of the Appellant against the 1st Respondents, I hold firmly that the 1st Respondent’s Suit is incompetent and thus, liable to be struck out. In law, once the requisite jurisdiction is found to be lacking that is indeed the end of the matter. In AG. Lagos State V.

Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court had per Kayode Eso JSC, (God bless his soul) put it so poetically thus: “Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.” Having arrived at the inescapable conclusion that the 1st Respondent’s Suit is incompetent, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of the Court; should we jettison and discountenance technicality bordering on incompetence of the 1st Respondent’s Suit and consider the other issues in this appeal on the merit or should we give effect to the settled principle of law that nothing worth anything can ever come out from an incompetent Suit?

In African Songs Limited &Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 AT p. 365 – 366, this Court had cause to consider the place of ‘substantial justice’ and ‘technical justice’ on the due administration of justice in this Country and had per Sir Biobele Abraham Georgewill JCA, opined inter alia thus: “My Lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication.

It is in this sense, the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words, while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.” ​I do not think I can improve on the statement of law I made above and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the 1st Respondent’s suit filed without competence.

In law, once a Suit is found to be incompetent the proper order to make is one of striking it out. See NPA Plc. V. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 258. Consequently, the 1st Respondent’s Suit is hereby struck out for being incompetent.

Now, as an aside, having held firmly that the 1st Respondent’s Suit was in law grossly incompetent and thus liable to be set aside, I consider the attempt by the 1st Respondent to file an Originating Summons with the clear intendment of either enforcing and or interpreting the consent judgment of the lower Court, despite the several lawful means of enforcement of a judgment of the lower Court which does not include by yet another judgment of the lower Court, to be a clear abuse of the process of the lower Court, and which ought to be terminated by an order dismissing the 1st Respondent’s Suit for being an abuse of Court’s process.

See Ganiyu V. Oshoakpemhe & Others (2021) LPELR -53222 (CA) per Sir Biobele Abraham Georgewill JCA. ​ In law, an abuse of Court process simply put, and for lack of a precise definition, denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise definition. See Dana Airlines Limited V. Mrs. Grace Eventus Mbong & Ors (2017) LPELR- 43052 (CA) per Sir Biobele Abraham Georgewill JCA.

See also Dana Airlines Ltd V. Yusuf & Ors (2017) LPELR 43051 (CA) per Sir Biobele Abraham Georgewill JCA. However, some guidelines were laid down by the apex Court in Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 AT p. 188, where the Supreme Court had opined inter alia thus: “The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions…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 judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.” See also Ziklagsis Network Ltd V. Adebiyi & Ors (2017) LPELR- 42899 (CA), per Sir Biobele Abraham Georgewill JCA, Dalhatu V. Turaki (2003) 15 NWLR (Pt. 843) 310, Mailantarki V. Tongo & Ors (2018) 6 NWLR (Pt. 1614) 69.

ISSUES TWO, THREE AND FOUR My lords, I have duly considered the claims of the 1st Respondent and the entire proceedings of the lower Court on 16/6/2022 leading to the order appealed against by the Appellant. I have also taken time to review the submissions of the parties under issues two, three and four for determination. I have already held under issue one for determination that the Appellant’s Suit was incompetent and struck out same. In law, jurisdiction is the life wire and the very soul of every cause or matter before the Courts.

A Court is therefore, competent only and only when all the conditions precedent to the exercise of the Court’s jurisdiction have been fulfilled. See Madukolu V. Nkemdilim (1962) All NLR 581. See also Petro Jessica Ltd V. Leventis Trading Co. Ltd (1992) 5 NWLR (Pt. 244) 693, Onuorah V. Kaduna PRC Ltd (2005) All FWLR (Pt. 256) 1.

Having therefore firmly held that the 1st Respondent’s Suit was grossly and irredeemably incompetent and thereby robbed the lower Court of its competence and jurisdiction, I consider issues two, three and four for determination dealing with the order of the lower Court as to whether it was valid or invalid as merely academic. Indeed, the Courts are loath to and do not saddle themselves with the consideration of matters which had become merely academic and therefore, of no utilitarian value to either of the parties.

To embark on such exercise of jurisdiction of the Courts over matters which are no longer live would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors(2013) All FWLR (Pt. 693) 1853. See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 AT pp. 254 – 255, Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497.

Thus, for a Court to continue to exercise its jurisdiction over matters pending before it, the matters must have in them issues which remain live for determination and of utilitarian value to one or more of the parties. See Uba Plc V. Dana Drugs Ltd (2018) LPELR – 44103 (CA), per Sir Biobele Abraham Georgewill JCA. See also Action Congress v INEC (2007) LPELR – 8988 (CA), Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 AT p 1497, Adeogun V. Fashogbon (2008) 17 NWLR (Part 1115) 149 AT p. 180.

Indeed, issues two, three and four for determination have become spent and I refuse to be drawn into the determination of an issue which are no longer live and with no utilitarian value except for its academic illumination and entertainment, which a consideration of issues two, three and four for determination would entail. Consequently, issues two, three and four for determination are hereby discountenanced. In Global Fleet Oil & Gas Ltd V.

Allen (2021) LPELR – 54583(CA), this Court had per Sir Biobele Abraham Georgewill JCA, had cause to reiterate inter alia thus: “Courts are loath to spend their precious and scarce judicial time considering and resolving merely academic questions in its judgment, which are better left for scholars in the Faculties of Law in our Universities to grapple with.

An issue becomes merely academic once it is no longer of any utilitarian value to the determination of the appeal one way or the other.” On the whole therefore, having resolved issue one for determination in favor of the Appellant against the 1st Respondent, and having discountenances issues two, three and four for determination, as having become merely academic on the face of the gross incompetence of the 1st Respondent’s Suit, I hold that the appeal has merit and ought to be allowed. Accordingly, it is hereby allowed.

In the result, the ruling of the Federal High Court, Abuja Division, Coram: I. E. Ekwo J, in Suit No. FHC/ABJ/CS/1636/2021: Chief Callistus Okafor V. Barrister Julius Abure & Ors delivered on 16/6/2022, in which the lower Court ordered the Appellant to file his Counter-Affidavit to the 1st Respondent’s Originating Summons within 7 days from 16/6/2022, is hereby set aside. In its stead, the 1st Respondent’s Suit No. FHC/ABJ/CS/1636/2021: Chief Callistus Okafor V. Barrister Julius Abure & Ors now pending before the lower Court is hereby struck out for being incompetent.

There shall be cost of N500,000.00 against the 1st Respondent in favour of the Appellant only.

PETER OLABISI IGE, J.C.A.: I have read in advance the judgment just delivered by my learned brother GEORGEWILL, JCA. I entirely agree with the said judgment but wish to add few things. My Lord has ably set out the facts culminating into this appeal and the issues which called for determination.

This is an action that was commenced by Originating Summons seeking among other things declaration that the meeting of 6th Respondent held on 9th October, 2018 and the National Convention of 6th Respondent held on 10th June, 2019 were in brazen violation of a valid consent judgment of the Federal High Court delivered on 20th day of March, 2018 and in contravention of the Constitution of the 6th Respondent to this appeal.

Issue 3 relates to whether lower Court has vires to interpret the Consent Judgment aforesaid entered in FHC/ABJ/CS/866/2018 – Labour Party & Ors v Comrade Salisu Mohammed & Ors on 20th March, 2018. The said Consent Judgment can be found on pages 63 – 67 of the Record of Appeal. The settled position of the law is that judgment given in any cause or matter becomes immediately binding upon the parties to it and enforceable under the Sheriff and Civil Process Act. Such judgment remains binding and subsisting unless it is set aside by a higher Court. See CHIEF UJILE D. NGERE & ANOR VS CHIEF J. W.

OKURUKET “XIV” & ORS (2014) 11 NWLR (PART 1417) 147 AT 173 C – H per RHODES- VIVOUR, JSC who said:- “287(3) of the Constitution reads: “287(3) The decisions of the Federal High Court the National Industrial Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively.

The judgment of a Court of competent jurisdiction subsists until upset on appeal. While the judgment subsists every person affected by, it, or against whom art order is made must obey even if appears wrong judgment takes effect immediately they are delivered and every Court has inherent power to proceed to enforce Judgments at once. The enforcements on delivery can only be interrupted by a stay of execution provided there, is an appeal. Parties are thus bound to obey Court orders that are clear and unambiguous, notwithstanding the fact that the order maybe wrong.

So long as a party refuses to implement or obey a Court order he would not be given a hearing in any subsequent application. See Odogwu v. Odogwu (1992) 12 NWLR (PT.225) P. 539, Governor of Lagos State v. Ojukwu (1986) 3 NWLR (PT. 26) P. 39.” (Underlined mine). The lower Court has no jurisdiction whatsoever to entertain the 1st Respondent’s action as constituted before it. Originating Summons is not designed for the interpretation of judgment of a Court whether of coordinate jurisdiction or that of a higher Court. See RACE AUTO SUPPLY COMPANY LTD & ORS V.

ALHAJI FAOSAT AKIB (2006) 13 NWLR (PART 997) 333 AT 351 E – 352 A – E per MOHAMMED, JSC who said: “In this appeal, it is necessary to examine the status of the Lagos High Court consent judgment of Obadina, J. (as he then was) of 4-5-98 which was placed before Shitta-Bey, J. of the same Lagos High Court for interpretation by the appellants under Order 46 Rule 1 of the Lagos State High Court (Civil Procedure) Rules, which provides: “Any person claiming to be interested under a deed will, or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for declaration of the rights of the parties interested.” The question is whether the consent judgment of 4-5-98 between the parties which was before the trial Court for interpretation on the application of the appellants comes within the definition of “written instrument” capable of being accommodated under the rule.

The word ‘instrument’ is defined in Strouds Judicial Dictionary, as ‘anything reduced to writing, a document of formal or solemn character. However, whether anything reduced to writing is an instrument largely depends on the context in which it is used. For example, the same Strouds Judicial Dictionary, Volume 3 at page 1386 stated plainly that “orders of Court were not instrument within Apportionment Act, 1834”.

One may find support in this observation by Stroud to say that a judgment of a Court of law can hardly be accommodated under the words “other written instrument” under Rule 1 of Order 46 of the Lagos High Court (Civil Procedure) Rules, 1994, under which the appellants filed their application for the interpretation of the consent judgment of 4-5-98.

In other words, a judgment of a Court of law cannot be subjected to interpretation by a Court of co-ordinate jurisdiction like a deed, a will or an instrument containing right and obligation of parties under Order 46 Rule 1 of the Lagos High Court (Civil Procedure) Rules.

In any case, even if the consent judgment in the present case were to be regarded as instrument under Rule 1 of Order 46, the provision would not give a High Court jurisdiction to determine any question of construction or interpretation arising from the judgment of a Court of co-ordinate jurisdiction like the Lagos High Court presided by Obadina, J. (as he then was) and the same Court as presided by Shitta-Bey, J. or that of a higher Court like the Court of Appeal or this Court.

If a judgment of a Court of law were to be regarded as an instrument like a deed or will, then even the judgment of the Court of Appeal or this Court could be subjected to interpretation by the High Court under Order 46 Rule 1 which is rather absurd.

In the present case therefore, the Court below was quite right in its decision that the trial Lagos High Court presided over by Shitta-Bey, J. lacked competence to subject the consent judgment of the same Court delivered by Obadina, J. (as he then was) to interpretation of the contents or terms thereof.” To my mind, the whole gamut of the questions postulated for answers in the suit and the reliefs sought therein were in effect an invitation to the lower Court to sit over the judgment of Court of coordinate jurisdiction and to sit as appellate Court on the judgment of his learned brother which he could not rightly do under the Constitution of the Federal Republic of Nigeria and the law.

In the case of MR AKINFELA FRANK COLE VS MR ADIM JIBUNOH & ORS (2016) 4 NWLR (PART 1503) 499 AT 521 C – H, the apex Court in the land reaffirmed the position stoutly when GALADIMA, JSC said:- “A Court of co-ordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. See Chief Gani Fawehinmi v A.G., Lagos State (No. 1) (1989) 3 NWLR (Pt. 112) 707 at 724, paras.

C -D where the Court “The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved.

It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court even if the judgment of Longe, J., were a nullity the proper way to set it aside is by an appeal not be review before a Court of co-ordinate jurisdiction… it seems to me that, in view of the provision of the constitution, which carefully shares jurisdiction to the various Courts.

Only the Court vested with the particular jurisdiction can interfere with the decision of another Court. The ruling of the trial Court that it has jurisdiction to entertain the present suit is due to the averments of fraud contained In the statement of claim, whereas the substance or issue in the suit is a challenge and a disguise to set aside the decision and auction carried out by virtue of an order made by a Court of coordinate jurisdiction in the earlier suit No. ID/1 082/90.

This is not proper.” The 1st Respondent is estopped from instituting another action to enforce judgment already given in Suit FHC/ABJ/CS/1866/2014 by HON. O. KOLAWOLE (now Justice of Court of Appeal) on 20/3/2018 which has already stated the right of the parties. The position taken by the 1st Respondent is an exercise in crass abuse of the process of Court which must be terminated. See 1. TTMIPRE SYLVA V INEC & ORS (2015) 16 NWLR (PART 1486) 576 AT 623 – 624 G – C per NGWUTA, JSC. 2. HON. TITUS ADENIYI OYEYEMI RTD & ORS V. HON.

TIMOTHY OWOEYE (2017) 12 NWLR (PART 1580) 364 AT 397 C – H per BAGE, JSC who said: “The logic of judicial sanctity dictates that the earlier suit and its appeal ought to be rested and decided one way or the other including whether or not the appeal was validly withdrawn. By instituting another action which embodies the issues as in the earlier action on appeal makes the later manifestly an unpardonable abuse of Court process. This Court has succinctly enunciated in Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392 at 419-420, paras.

H-C on the meaning of abuse of Court process and held that: “Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used malafide merely to overreach the adversary to the direct annoyance of the Court.

The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.” That precisely is what the 1st Respondent has done by the institution of this suit.

The lower Court lacked jurisdiction to entertain the suit and whatever order made in it by the lower Court is a nullity and this Court is under obligation to set it aside. See ALHAJI JIBRIN BALA HASSAN VS. DR.

MUAZU BABANGIDA ALIYU & ORS (2010) 11 SCM 69 AT 93 E per ONNOGHEN, JSC, later (CJN, Rtd.) who said: “It is trite that jurisdiction is very fundamental to adjudication and that where a Court lacks the competence to hear and determine a matter but proceeds to do so, an appellate Court is duty bound to nullify a decision resulting therefrom.” It is for the above reasons and the fuller reasons given in the leading judgment that I entirely agree that this appeal be and it is thereby allowed and the order made in the suit, Suit No. FHC/ABJ/CS/1636/2021 on 16/6/2022 should be set aside.

I also agree that the said suit filed by the 1st Respondent be struck out. I agree with the consequential order as to costs contained in the leading judgment.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My learned brother, Biobele Abraham Georgewill, JCA made available to me the draft of the leading judgment which has just been delivered. In his characteristic and trademark sapience, he has fastidiously resolved the crucial issue thrust up for determination in this appeal. I agree with his reasoning and conclusion as the same accords with my views. ​ For the reasons contained in the leading judgment, which I adopt as mine, I avow my concurrence that this appeal is immensely meritorious.

I therefore join in allowing the appeal and on the same terms as set out in the leading judgment. I abide by the order as to costs. Appeal allowed.

Judgment

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgement): This is a motion on notice brought pursuant to Order 6 Rule 9 of the Court of Appeal Rules 2022 dated the 30th day of September, 2022 praying for the following orders: “1. AN ORDER of this Honourable Court striking/dismissing APPEAL NO. CA/K/363/2015 between National Ear Care Centre v M. E. Asuku & 56 Ors for lack of jurisdiction. 2. AN ORDER if this Honourable Court striking out/dismissing APPEAL NO. CA/K/363/2015 Between National Ear Care Centre v M. E. Asuku & 56 Ors as same has become academic. 3.

AND for such other order or orders as this honourable Court may deem fit to make in the circumstances.” The grounds upon which the Motion is brought are: “1. Houses Nos. GCC1-6 I & J known as Nos. 1, 2, 3, 4, 5 and 6 Golf Course Road, Kaduna which are the subject matter of this Appeal have been demolished by the Kaduna State Government to make way for expansion and dualization of Golf Course Road, Kaduna; 2. The Appellant is alleging that the houses belong to the Kaduna State Government through the Kaduna State Development and Properties Company (“KSDPS”), its investment vehicle. 3.

The ownership of the houses has undergone several transfers from Ahmadu Bello University Teaching Hospital to the 44th – 49th Respondents who later sold to private individuals before the subsequent demolition; 4. The Appellant does not have locus to claim the houses having admitted by its pleadings before the trial Court that the houses belong to Kaduna State Government; 5.

And if the houses belong to the Kaduna State Government as alleged by the Appellant and they were eventually demolished by the same Kaduna State Government to make way for road expansion, neither the Appellant, nor the 44th – 49th Respondents is entitled to compensation; and 6. The appeal has become an academic exercise and is liable to be struck out and dismissed for lacking merit.” ​The application was supported by a 6 paragraph affidavit deposed to on the 30th day of September, 2022 by Faith Nnamani.

Also attached thereto is a Written Address in support also filed on the 30th day of September 2022. In the said written address, two issues for determination were raised as follows: 1.The Appellant having admitted in its counterclaim that the said houses subject of this appeal were gifted to it by the Kaduna State Government and the Kaduna State Government having not appealed against the judgment of the trial Court, the Appellant has a right of appeal? 2. Whether or not this appeal has become academic in view of the fact that the subject matter has been destroyed?

On issue one, it was argued that the right of appeal as enshrined in Section 241, 242 and 243 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) inures to only those mentioned under the sections. The case of ALL PROGRESSIVE CONGRESS & ANOR VS. ALHAJI ABU ADEJARE GBADAMOSI & ANOR (2022) LPELR – 58083 (CA) was referred to. It was submitted that a person can only appeal against a decision if he is directly aggrieved by the decision and not a meddlesome interloper who wants to cry more than the bereaved.

It was then argued that the judgment affected only the 55th and 56th Respondent who did not appeal against that decision and that the Appellant is a rabble-rouser meddlesome interloper who wants to reap where it did not sow. ​It was then submitted that the Appellant having admitted by its counterclaim that these houses belong to the Kaduna State Government, lacks the locus standi to appeal on behalf of the 55th and 56th Respondents when the 55th and 56th Respondents did not appeal against the judgment.

It was submitted further that the 55th and 56th Respondents having accepted that the houses belong to the hospital and did not form part of the properties handed over by the Federal Government, the Appellant who is claiming based on the claims of the 55th and 56th Respondents has lost the right to claim ownership of the said houses. The case of MOBIL PRODUCING (NIG) UNLIMITED & ANOR VS.

MONOKPO & ANOR (2003) LPELR – 1886 (SC) was cited in support. ​On the second issue, it was argued that houses GCCI 1 – 6 Golf Course Road, Kaduna, which are the subject matter of this appeal have been demolished by the Kaduna State Government to make way for the expansion and dualization of the Golf Course Road, Kaduna and as such the appeal has become academic since the subject matter has been destroyed. The cases of PLATEAU STATE GOVERNMENT VS. ATTORNEY GENERAL OF THE FEDERATION (2006) 3 NWLR (PT. 967) PP. 364 and APC VS. ENWEREM & ORS (2022) LPELR – 57816 (SC) were relied on.

It was then submitted that the only live issue is the issue of compensation and that since the Kaduna State Government is the owner of the houses as alleged by the Appellant, and it was the same Kaduna State Government that demolished the houses for the purpose of road expansion, it means that no compensation will be paid to anybody including the Appellant since it is a case of an owner of property destroying it to construct a road. The case of APC VS. ENWEREM & ORS (2022) LPELR – 57816 (SC) was cited in support. On the whole, the Court was urged to dismiss the appeal with punitive cost.

The Respondent on its part, filed a 6 paragraph Counter-Affidavit deposed to on the 12th day of October, 2022 by Lafifat Sanusi and one document marked as Exhibit A was attached to the said Counter-Affidavit. Also attached to the Counter-Affidavit was a Written Address dated the 12th day of October, 2022. In the said written address, the following 3 (three) issues were formulated for determination: 1. Whether in the circumstances of this case, the 1st–43rd Respondents/Applicants are not liable of abuse of Court process? 2.

Whether the Appellant has interest in the subject matter of this appeal as to have been affected by the judgment of the trial Court? 3. Whether this appeal has become academic by reason of acquisition of a section of the subject matter of this appeal by the Kaduna State Government? On issue one, it was submitted that the 1st – 43rd Respondents/Applicants are liable of abuse of Court process for adopting two similar processes to exercise the same right. The case of LADOJA VS. AJIMOBI & ORS (2016) LPELR – 40658 (SC).

It was then submitted that counsel for the 1st – 43rd Respondents/Applicants first filed a Notice of Preliminary Objection challenging the competence of the instant appeal on the ground that (a) the Appellants lack the locus standi to institute this appeal and (b) that the appeal has become academic and spent. That upon being served with the said brief of argument, Counsel opposed the preliminary objection and argued same in the Appellant’s reply brief.

However, that the Counsel to the 1st – 43rd Respondents/Applicants having been served with the reply quickly filed the instant application seeking the same reliefs based on the same grounds and supported by the same argument as contained in the Notice of Preliminary Objection. It was then submitted that the consequence of a process which abuses the process of Court is dismissal. The case of NWOSU VS. PDP & ORS (2018) LPELR – 44386 (SC) was relied upon in support.

On issue two, it was argued that contrary to the submission of learned counsel for the 1st-43rd Respondents/Applicants, the Appellant’s interest in the subject matter of this appeal and how same was affected by the judgment of the trial Court is demonstrated by the grounds of appeal as contained in the Appellant’s Amended Notice of Appeal. Additionally, it was submitted that in demonstrating how it acquired its interest in the subject matter of this appeal, the Appellant tendered Exhibit M as proof of gift/allocation.

Furthermore, it was submitted that the 55th and 56th Respondents who represented the Kaduna State Government at the trial Court never denied the pleadings and evidence on the issue of the gift nor did they counter-claim. It was then contended that the 55th and 56th Respondents’ interest in the subject matter of this appeal terminated or subsided from the time the Kaduna State Government gifted the houses to the Appellant. Finally, learned counsel for the Appellant/Respondent distinguished the case of ALL PROGRESS CONGRESS & ANOR VS.

ALHAJI ABU ADEJARE GBADAMOSI & ANOR (SUPRA) relied upon by the Respondents/Applicants from the instant case. ​On issue three, it was argued that acquiring a section of the land on which houses Nos. GCC1 1 – 6 I and J known as Nos. 1, 2, 3, 4, 5 and 6 Golf Course Road were built by the Kaduna State Government does not automatically truncate the outcome of this appeal as the Constitution of the Federal Republic of Nigeria, 1999 (as amended) mandates the government to pay compensation to owners of landed property forcefully acquired by it.

It was submitted further that the Counter Affidavit deposed to by the legal officer of the Appellant states categorically that the Kaduna State Government only acquired a section of the land and is planning to pay compensation to the successful party upon determination of this appeal, and that there is a section of the land not acquired by the government on which a private individual has started digging foundation despite the pendency of this suit. On the whole, the Court was urged to dismiss the application for lack of merit.

RESOLUTION OF THE ISSUES I have read carefully and summarized the arguments of learned counsel to the parties contained in their respective written addresses. Looking at the issues for determination and the arguments proffered thereon, the attention of this Court has been drawn to the argument of the learned Respondents’ Counsel on the issue of abuse of Court process which is a jurisdictional one.

Flowing from the trite position of law that issues of jurisdiction should be determined first, I shall now go ahead and determine the issue of whether in the circumstances of this case, the 1st – 43rd Respondents/Applicants are not liable for abuse of Court process? ​I have looked at the processes filed before this Court and it is clear to me that the Applicants had filed a Notice of Preliminary Objection challenging the competence of the appeal and that the appeal has become academic and spent which was argued in the Respondents’ Brief of Argument.

The issues for determination argued in the written address in support of the Motion on Notice filed by the 1st – 43rd Respondents/Applicants are as follows: 1. The Appellant having admitted in its counterclaim that the said houses subject of this appeal were gifted to it by the Kaduna State Government and the Kaduna State Government having not appealed against the judgment of the trial Court, the Appellant has a right of appeal? 2.

Whether or not this appeal has become academic in view of the fact that the subject matter has been destroyed? ​On the other hand, the Notice of Preliminary Objection filed by the 1st – 43rd Respondents/Applicants is reproduced hereunder as follows: a. The Appellant lacks the locus to appeal against the judgment of the trial Court since the 55th and 56th Respondents who allegedly gifted it Houses Nos. GCCI-1-6 I & J known as Nos. 1, 2, 3, 4, 5 and 6 Golf Course Road, Kaduna which are the subject matter of this appeal have accepted the judgment of the trial Court; b.

The judgment was against the internet of the 55th and 56th Respondents through whom the Appellant claimed to have derived its title to the said houses by virtue of a gift; c. The 55th and 56th Respondent against whom the judgment was given accepted the judgment of the trial Court that Houses Nos. GCCI I-6 I & J known as Nos. 1, 2, 3, 4,5 and 6 Golf Course Road, Kaduna did not belong to it and did not form part of the core structures of the Hospital; d. Houses Nos.

GCCI I-6 I & J known as Nos. 1, 2, 3, 4,5 and 6 Golf Course Road, Kaduna which are the subject matter of this appeal have been demolished by the Kaduna State Government to make way for expansion and dualization of Golf Course Road, Kaduna. e. The Appellant is alleging that the houses belong to the Kaduna State Government through the Kaduna State Development and Properties Company (KSDPC) its investment vehicle, even though no evidence was led to establish this claim and f.

The appeal has become an academic exercise and liable to be dismissed for lacking merit. ​Two legal issues were formulated from the grounds above as follows: i. The Appellant is not affected by the judgment ii. The appeal has become academic as the subject matter of the appeal has been destroyed. Looking at these arguments, it is clear that the arguments of the 1st – 43rd Respondents seek to achieve the same result.

The argument does not have to be word for word, rather it is sufficient that the 1st – 43rd Respondents intended to achieve same result from this Court and in my opinion, it is clear from the arguments in both applications that the 1st – 43rd Respondents/Applicants seeks to achieve same result. The concept of abuse of Court process takes different forms and it is imprecise. It involves circumstances and situations of infinite variety and conditions.

But a common feature of abuse of Court process is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. One of such circumstance is where a Court process is premised on frivolity or recklessness. See generally, the cases of SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) PG. 156; OKOROMADU VS. OKOROMADU (1977) 3 SC 21; OYEGBOLA VS. ESSO WEST AFRICA INC. (1966) 1 ALL NLR 170; ARUBO VS. AIYELERU (1993) 3 NWLR (PT. 280) PG. 126 and OGOEJEOFO VS. OGOEJEOFO (2006) 3 NWLR (PT. 966) PG. 205.

I have microscopically perused the processes filed before this Court and I agree with the argument of the Appellant/Respondent that this motion filed by the 1st – 43rd Respondents constitutes an abuse of Court process. It is trite that where a Court comes to the conclusion that its process has been abused, the appropriate order to make in the circumstance is one of dismissal of the process. See the cases of CHIEF ARUBO VS. AIYELERU (1993) 3 NWLR (PT. 260) 126 and KODE VS.

ALHAJI YUSSUF (2001) 4 NWLR (PT. 703) 392; (2001) 3 SCM 62. ​Before I conclude, this ruling will not be complete without registering my displeasure with the learned counsel for the 1st – 43rd Respondents who as a minister in the temple of justice, should have known not to bring unnecessary applications before the Court. Why would counsel bring this application when there already exists a Notice of Preliminary Objection on same issue for determination yet to be determined by the Court? This action smacks of abuse of this Court’s process and a waste of the precious time of this Court.

Counsel, as it is presumed should know the law and as an officer of Court should know better and should not do or perform any act which may amount to an abuse of the process of the Court. I shall say no more on the issue. In the circumstances, I hold that this application lacks merit and same is therefore hereby dismissed. I award the sum of N50,000 (Fifty Thousand Naira) as cost against the Counsel to the 1st – 43rd Respondents Counsel, Mohammed Kabir Abdullahi in favour of the Appellant.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead ruling just delivered by my learned brother, Mohammed Baba Idris, JCA and I am in agreement that the motion of the 1st – 43rd Respondents/Applicants filed on 30th September 2022 while the Preliminary Objection to the Appellant’s appeal on similar grounds and seeking virtually the same reliefs is still pending constitutes an abuse of Court process. ​It is an abuse of Court process where as in the instant appeal a party initiates, institutes and prosecutes two or more similar processes on the same subject matter seeking the same or similar relief at the same time and without staying or drawing one or more of the actions.

See TORIOLA & ORS V. WILLIAMS (1982) NSCC 187 AT 189. The subsequent action(s) which constitute(s) the abuse is/are liable to be appropriately punished with a dismissal, see DINGYADI & ANR V. INEC & ORS (2011) LPELR – 950 (SC). In the circumstance, I also dismiss the motion of the 1st – 43rd Respondents/applicants which constitutes a flagrant abuse of Court process and abide by the order as to cost.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft the lead ruling of my learned brother, MOHAMMED BABA IDRIS, JCA, and I agree with the reasoning and conclusion.

Judgment

EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgement): The applicant and respondent entered into a sublease agreement dated 16-4-2007 and agreed to submit all disputes arising from it to arbitration. A dispute arose between them concerning the applicant’s performance of its obligations in the contract and the dispute was submitted to arbitration by a sole Arbitrator.

Following the conclusion of arbitral proceedings, the sole Arbitrator on 19-8-2011 made an Arbitral award titled “Final Arbitration award, in full and final settlement of the claims in the arbitration as follows: “ACCORDINGLY, I DO HEREBY AWARD, DECLARE AND DIRECT IN FULL AND FINAL SETTLEMENT OF CLAIMS IN THIS ARBITRATION AS FOLLOWS: 1. The Claimant’s claim succeeds in part. 2.

The Respondent shall within a period of six (6) months from the date of this award, hand over a copy of the Fire and General Insurance of the property to the Claimant and carry out the necessary repair works on the property as identified in Exhibit C7, the Minutes of the Joint Inspection meeting held on the 26th day of August, 2010 and Exhibits C6(i) and (ii) the reports of Ekcel Konsultants dated the 10th day of December, 2008 and February, 2011 respectively. 3.

The Respondent is allowed relief from forfeiture on condition that within six (6) months from the date of this award in compliance with the sublease it hands over a copy of the Fire and General Insurance of the property to the Claimant and carry out the necessary repair works on the property as identified in Exhibit C7, the minutes of the joint inspection meeting held on the 26th day of August, 2010 and Exhibits C6(i) and (ii) the reports of Ekcel Konsultants dated the 10th day of December, 2008 and February, 2011 respectively. 4.

The Respondent shall pay the claimants within 30 days of the date hereof the sum of N3,365,000.00 (Three Million, Three Hundred and Sixty-Five Thousand Naira) representing payment for replacement of marble tiles and Generator purchase/Installation/Servicing. 5. The Respondent shall pay the Claimant interest on the sum awarded in paragraph 4 above or any amount outstanding on same from the 30th day of this award at the rate of 2.5% per annum until final payment. 6.

The Respondent shall pay to the Lagos Multi-door Courthouse the administrative fees and arbitration session fees, any amount paid by the Claimant shall be reimbursed by the Respondent to the Claimant forthwith and any amount remaining unpaid shall bear interest at the rate of 2.5% per annum from the 30th day of this Award.”

By a motion on notice filed on 3-5-2012, the respondent herein applied to the High Court of Lagos State for- “1. Order granting leave to the Claimant/Applicant to enforce the Final Arbitration Award dated 19th August, 2011 of Mrs. Adedoyin Oyinkan Rhodes-Vivour (FCIArb) against the Defendant/Respondent in the same manner as a judgment of the Court to the same effect. 2.

An order of the Court enforcing Clause 3 of the said Final Arbitration Award dated 19th day of August, 2011, forfeiture of the sublease agreement dated 16th April, 2007 against the Defendant/Respondent in the same manner as a judgment of the Court to the same effect.”

The grounds for the application stated on the motion read thusly- “The Respondent has failed to comply with Clause 2 of that part of the said Final Arbitration Award regarding the carrying out of “necessary repair works on the property as identified in Exhibit C7, the minutes of the joint inspection meeting held on 26th August, 2010 and Exhibits C6(i) and (ii) the Reports of Eckel Konsultants dated 10th December, 2008 and February, 2011 respectively as directed by the Arbitrator in the said Final Arbitration Award dated 19th August, 2011.”

On 4-7-2013, the High Court of Lagos State rendered its ruling and held that the arbitral award “was inconclusive as to Award No. 3 thereof and therefore, unenforceable” and struck out the application for being incompetent. ​ Dissatisfied with the ruling of the High Court of Lagos State, the respondent herein, on 26-9-2013, filed a notice of appeal against the said ruling, commencing Appeal No. CA/L/990/2013 in the Court of Appeal sitting in Lagos.

On 6-3-2015, the Court of Appeal delivered its judgment in the appeal, holding inter alia thusly- “The arbitral award (supra) is clear, unequivocal or unambiguous. There is no complaint that it contains decisions on matters beyond the range of the submission to arbitrations There is also no indication that the sole arbitrator misconducted herself, nor was evidence put forward to suggest the arbitral proceedingsand/or the award has been improperly procured. None of the vitiating factors (supra) was made out.

The award itself is final and conclusive and is based on solid, persuasive, and tested expert evidence which is uncontroverted and bears weight and admissibility which persuaded the sole arbitrator, aright in my view, to base the award on the said one way expert evidence in Exhibit ASL/3 after close examination of it. In addition, the arbitral award (supra) was accepted by the respondent and the appellant as binding on them without whimper of protest.

Being a final/conclusive and crystal clear award the Court below should have enforced the arbitral award as judgment without ado, all the more so it did not offend the three preconditions in Sections 29 and 30 of the A.C.A. enumerated. With deference to the Court below, the award (supra) is not doubtful on its face. It is valid, enforceable, and should have been enforced summarily for promptitude and convenience.

Because the award had granted the relief from forfeiture of the sublease in favour of the respondent only on condition that the respondent within 6 (six) months of the award hands over acopy of the Fire and General Insurance of the demised property to the appellant and, in addition, the respondent carries out the necessary repair work on the demised property as identified and specified in the award which the respondent has breached, therefore the award (supra) is in that wise conclusive and enforceable, in my modest view.

The respondent did not discharge the dual obligation placed on it by the final arbitral award (supra) as stipulated therein. The award (supra) became spent by the inactivity of the respondent. Having flouted the terms of the arbitral award (supra), the respondent lost the protection of the relief from forfeiture of the sublease. And it required an order of Court to formally terminate it. So the Court below had something to enforce in the award. It should have made an order setting aside and/or revoking the said award of the relief from forfeiture. The appeal is therefore meritorious.

I would allow it. The order of the Court below refusing to enforce the award and striking out the action is hereby set aside. By Section 15 of the Court of Appeal Act 2004, the Court takes the place of the Court belowwith respect to the case on appeal.

In light of the fact that a further evidence is needed as all that is required to do justice to the case is in the record, I invoke Section 15 of the Court of Appeal Act to enforce the award by revoking the award of relief from forfeiture which was made conditional or contingent upon the fulfillment by the respondent of the two conditions stated in the award within the time frame of 6 (six) months (supra) which the respondent breached. The respondent shall pay N30,000.00 costs to the appellant.”

Dissatisfied with the judgment of the Court of Appeal, the appellant commenced appeal no. SC/546/2015 by filing a notice of appeal on 10-4-2015, containing 7 grounds for the appeal. The said appeal was entered in this Court on 11-8-2015.

By a motion on notice filed on 1-3-2016, the applicant applied to this Court for an order enlarging the time to seek leave to appeal on grounds 1, 3, 4, 5, 6 and 7 of the grounds of appeal in the notice of appeal filed on 10-4-2015, being grounds of facts or mixed law and facts, leave to so appeal on the said grounds in that notice of appeal, extension of the time to so appeal on the said grounds, an order deeming the said notice of appeal filed on 10-4-2015 and the grounds of appeal therein as properly filed and served, an order deeming the record of the appeal compiled and transmitted to the registry of this Court on 24-7-2015 as properly transmitted.

The respondent filed a counter-affidavit in opposition to the application.

On 4-10-2016, the respondent herein filed a motion on notice applying for the dismissal of Appeal No. SC/546/2015 for lack of diligent prosecution consequent upon the failure of the appellant to file brief over one year after entry of the appeal. On 4-11-2016, the appellant applied for extension of time to file its brief and to deem the brief it then filed as proper. The application was granted. On 19-9-2017, the respondent sought to raise a preliminary objection against the competence of the appeal.

This Court ordered that “parties are hereby ordered to rely on arguments for and against the preliminary objection the respondent seeks to raise in their respective briefs and same shall be taken along with the appeal.” The respondent then filed its brief and raised therein a preliminary objection that the noticeof appeal filed on 10-4-2015 was incompetent because all the grounds for the appeal were of facts or mixed law and facts and no leave of Court was first obtained to appeal on those grounds before the notice of appeal was filed.

This Court, however decided to hear the appellant’s motion filed on 1-3-2016 seeking to regularize the notice of appeal that commenced Appeal No. SC.546/2015.

After considering the respective affidavits of the parties and their written addresses, this Court on 22-5-2020, rendered its ruling, holding that since all the grounds of appeal in the notice of appeal are of facts or mixed law and facts and no leave of Court to appeal on those grounds as required by Section 233(3) of the 1999 Constitution, was first obtained before it was filed, the notice of appeal was incompetent and consequently, this Court lacked the jurisdiction to entertain the appeal. This Court then dismissed the application.

On 4-8-2020, the applicant herein filed another application applying for reliefs that are the same with the reliefs in the application dismissed by this Court in its ruling of 22-5-2020, save that the reliefs asked for in this applicationapplied to all the grounds in the notice of appeal filed on 10-4-2015. The applicant by another motion on notice filed on 23-10-2020 applied for an order setting aside this Court’s ruling on 22-5-2020 and three other reliefs that are exactly the same with the reliefs sought for in the motion filed on 4-8-2020.

On 2-2-2021, the applicant withdrew the motion filed on 4-8-2020 and the one filed on 23-10-2020.

On 4-2-2021, the applicant commenced afresh the process of appealing against the Court of Appeal judgment in Appeal No. CA/L/990/2013 by filing another motion on notice with No. SC/CV/102/2021 praying for- “1.

AN ORDER of this Honourable Court enlarging the time within which the Applicant may seek leave to appeal on ground 1, 2, 3, 4, 5, 6, 7 and 8 which are grounds of facts or mixed law and facts, contained in the Proposed Notice of Appeal (Exhibit J), against the decision of the Court of Appeal, Lagos Judicial Division (Coram: Sidi Bage, Joseph Ikyegh and Tijjani Abubakar JJCA) in Appeal No: CA/L/990/2013 between Ake Shareholdings Limited v. Optimum Construction & Property Development Company Ltd. delivered on 6th March, 2015. 2.

AN ORDER of this Honourable Court granting leave to the Applicant to appeal on grounds 1, 2, 3, 4, 5, 6, 7 and 8 which are grounds of facts or mixed law and facts, contained in the Proposed Notice of Appeal (Exhibit J) against the decision of the Court of Appeal, Lagos Judicial Division (Coram: Sidi Bage, Joseph Ikyegh and Tijjani Abubakar JJCA) in Appeal No: CA/L/990/2013 between Ake Shareholdings Limited v. Optimum Construction & Property Development Company Ltd. delivered on 6th March, 2015. 3.

AN ORDER of this Honourable Court enlarging the time within which the Applicant may appeal on grounds 1, 2, 3, 4, 5, 6, 7 and 8 which are grounds of facts or mixed law and facts, contained in the Proposed Notice of Appeal (Exhibit J) against the decision of the Court of Appeal, Lagos Judicial Division (Coram: Sidi Bage, Joseph Ikyegh and Tijjani Abubakar JJCA) in Appeal No: CA/L/990/2013 between Ake Shareholdings Limited v. Optimum Construction & Property Development Company Ltd. delivered on 6th March, 2015.

The application is supported by an affidavit of 9 paragraphs, documentary Exhibits A to I, and a written address of same, further affidavit filed on 11-3-2021 and further affidavit filed on 12-3-2021 and a written reply on points of law.

The respondent filed a counter-affidavit of 4 paragraphs accompanied by documentary Exhibits A to F and a written address in opposition of the application.

The applicant’s written address raised one issue for determination as follows – “whether the applicant is not entitled to the reliefs sought, considering the facts and circumstances of this application.”

The respondent’s address reproduced and argued the issue raised for determination in the appellant’s brief and also raised for determination the following issue- “whether this application is an abuse of process in view of the fact that the respondent’s preliminary objection argued in the respondent’s brief filed on the 6th February, 2018 and the applicant’s motion filed on the 1st March, 2016 and this present application have already argued all the same issues.”

I think the issue of abuse of process by re-litigation of the same issues raised in the respondent’s brief should be determined first as it touches on whether the merit of this application deserves any consideration.

The learned Counsel for the respondent argued that this application is the same with the one applicant filed on 1-3-2016, that the issues raised and argued concerning that application are the same with the issues raised in this application, that those issues were argued in the briefs already filed by the parties before the motion to regularize the appeal was filed, that the hearing and dismissal of that application by this Court effectively determined the issues in that application, that by this application the applicant seeks to re-litigate those same issues and that this application is an abuse of the process of this Court.

Learned Counsel for the applicant argued in reply that this Court’s ruling of 22-5-2020 dismissing the application of 1-3-2016 does not constitute a bar to the present application, that the refusal of an application for extension of time to seek leave to appeal does not constitute a bar to a similar application, that this Court has the discretion to hear an application identical to the one previously dismissed, that this Court has held in Edilcon (Nig.) Ltd v.

UBA Plc. (2017) 18 NWLR (Pt. 1596) 74 at 93 that it has wide discretionary power toconsider identical application that have been dismissed by it, that this application is not an abuse of the process of this Court, that an exercise of the right to appeal bona fide cannot be an abuse of Court process.

Let me now determine the merits of the arguments of both sides.

It is clear from the reliefs prayed for in the motion of 1-3-2016 and the affidavit supporting it, that the application was brought by the applicant upon realizing that it needed leave of Court to appeal on the grounds contained in the notice of appeal it filed on 10-4-2015 and therefore should have obtained the leave to appeal on those grounds, being grounds of fact or mixed fact and law, before it filed the said notice of appeal on 10-5-2015 against the said judgment of the Court of Appeal.

The application was brought to regularize the said notice of appeal of 10-4-2015 that commenced Appeal No. SC.546/2015 and deem it as regularly filed and served. This Court held that without the leave to appeal first obtained, the notice of appeal filed on 10-4-2015 was ab initio void and that since something cannot stand on nothing the appeal it commenced and all the processes filed therein including the application of 1-3-2016 were void.

In situations such as this, the proper course open to a party who desires to appeal, is to commence afresh the process of fulfilling the conditions precedent to filing a valid appeal, by applying for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal under a new appeal number. There is no law prohibiting the prospective appellant from doing so.

The fact that briefs had been filed by the parties to the appeal, that the issue of lack of leave to appeal had been raised and argued in the briefs before the application of 1-3-2016 was filed, the dismissal of the application cannot operate to bar the applicant from commencing afresh the process of appealing. Once it is adjudged that a Court ab initio lacked the jurisdiction to entertain any case, everything done or step taken in the proceedings is a nullity on the principle ex nihilo nihil fit. The stage of the proceedings in which such a decision was made is immaterial.

The fact that the decision was made after briefs in the appeal had been filed and during the pendence of objection that the appeal was incompetentfor lack of leave of Court to bring it, would not transform it into a determination that would put finality to the case. The dismissal of an appeal on the ground that the required leave of Court to bring it was not first obtained before it was filed, does not determine the merit of the appeal and cannot finally determine the appeal so as to bar the exercise of a right of appeal to properly appeal.

To hold otherwise would contradict and defeat the decision of this Court that leave of Court not having been first obtained to bring the appeal, the notice of appeal was incompetent, that the Court lacked the jurisdiction to entertain the appeal for that reason and that the notice of appeal, the appeal and the proceedings therein are a nullity.

The law is established that the proper order to make where an appeal is incompetent and therefore robs the Court of jurisdiction to entertain it, is to strike it out. It is not appropriate to dismiss such an appeal, as a dismissal suggests that that the appeal was determined on merits or finally. Where, as in this case, an order of dismissal is made, it would have the effect of a striking out and would not put finality to the case and bar further litigation of the dispute in the appeal. This Court in Obasi Brothers Merchant Co. Ltd. v.

Merchant Bank of Africa Securities Ltd. (2005) 2 SCNJ 272 at 279 had restated that “it is not in all cases where a matter is dismissed that it completely terminates the case. Indeed, where a case is said to have been dismissed in the High Court but the circumstances show that such dismissal could not possibly connote or denote the determination as to put finality to the case, the Court views such dismissal as mere striking out”.

In Okolo V Union Bank Nig Ltd (2004) 2 SCM 187, this Court held that “when a Court lacks jurisdiction to entertain a suit for any reason, the proper order to make is to strike it out and not to dismiss it”. In Kogi State V Yakubu (2001) 5 NSCQR 598 at 607, this Court had held that “When a Court finds an action improperly constituted, the proper order to make is to strike it out and not to dismiss it”. See also Abiegbe v.

Ugbodume (1973) 1 SC 103 and Adesokan V Adetunji (1994) 6 SCNJ 123. ​ Another question thrown up by the argument of Learned Counsel for the respondent is whether the application of 4-2-2021 is a re-litigation of the same issues litigated in the application of 1-3-2016 and decided by this Court on 22-5-2020. The answer is no because the facts and issues are different in the two applications.

The application of 1-3-2016 was made during the pendence of appeal No. SC.546/2015 commenced by a notice of appeal filed on 10-4-2015 without leave of Court and the issue was the regularization of the pending appeal and processes therein. This application is made when no appeal is pending and seeks to secure the fulfillment of the condition precedent to bringing a valid appeal. The purpose of the application is to obtain extension of time to seek leave to appeal, leave to appeal and extension of time to appeal.

The issue here is whether the applicant should be granted extension of time to seek leave to appeal, leave to appeal and extension of time to appeal. The issue that was determined in the application of 1-3-2016 in Appeal No. SC.546/2015 was whether the notice of appeal in Appeal No. SC.546/2015 could be regularized so as to validate the appeal. ​ In the light of the foregoing, I hold that this instant application is not an abuse of Court process.The applicant acted reasonably by bringing this application to commence afresh the process of satisfying the conditions precedent to a valid appeal.

It is a bona fide and legitimate exercise of his constitutional right of appeal. No law prohibits such application. There is nothing to show that the application is mala fide or is an improper or vexatious use of a legal process. As held by this Court per Oputa, JSC in Amaefule & Anor v. The State (1988) LPELR – 450 (SC) “Abuse of process of 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 also mean abuse of legal procedure or improper use of legal process….

The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process, civil or criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby…” See also Attahiru v. Bagudu (1998) 3 NWLR (Pt. 543) 636 at 658 and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156.

The question of whether the application is an abuse of Court process is resolved in favour of the applicant.

Let me now consider the sole issue raised for determination in the applicant’s written address. It asks – “Whether the applicant is not entitled to the reliefs sought, considering the facts and circumstances of this application.”

I have carefully read and considered the arguments in the written address of each party on this issue.

The power of this Court to extend the time prescribed by Section 27(2) of the Supreme Court Act 2004 to appeal or apply for leave to appeal from the judgment of the Court of Appeal is vested on it by Subsection (4) of Section 27 of the said Act. But the practice and procedure of this Court on how to exercise that power is regulated by Order 2 Rule 31 of the Supreme Court (Amendment) Rules, 2014 which states in the Proviso to Sub-rule (1) of the said Rule 31 that extension of time may be granted only in exceptional circumstances.

This means that extension of time to apply for leave to appeal or to appeal should not be granted unless exceptional circumstances exist that warrant its grant. Sub-rule (2) of the same Rule 31 provides inter alia, that the application must be accompanied by an affidavit setting forth good and substantial reasons for the failure to appeal or to apply for leave to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard.

By virtue of this provision, the exceptional circumstances that should warrant the grant of extension of time to appeal or apply for leave to appeal are the existence of facts showing good and substantial reasons for the delay and grounds of appeal that prima facie show good cause why the appeal should be heard. In a long line of cases, this Court has restated, while applying this provision, that these two circumstances must co-exist to warrant the grant of an application for extension of time to appeal or for leave to appeal.

Let me determine if the affidavit in support of the application discloses good and substantial reasons for the failure of the applicant to apply for leave to appeal or appeal within time and if the proposed grounds of appeal show good cause why the appeal should be heard.

It is obvious from the fact that the notice of appeal against the 6-3-2015 judgment of the Court of Appeal in Appeal No. CA/L/990/2013 was filed on 10-4-2015, within 35 days after the said judgment, that the applicant did not delay in engaging and instructing a legal practitioner to appeal against the said judgment. It is not in dispute that the said Legal Practitioner was not diligent in commencing the appeal, as he failed to first obtain leave to appeal on grounds of facts or mixed law and facts before filing the notice of appeal of 10-4-2015.

It is this lack of diligence of counsel that prevented the appellant from filing a valid appeal within 3 months after the date of judgment of the Court of Appeal as prescribed by Section 27(2) (a) of the Supreme Court Act, 2004. It is this lack of diligence on the part of counsel that resulted in his failure to file the proper application for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal after the appeal filed on 10-4-2015 was adjudged incompetent and the application to regularize the appeal dismissed.

On 4-8-2020, he filed a motion on notice praying for the regularization of the notice of appeal that this Court had on 22-5-2020 adjudged incompetent and struck out.

On 23-10-2020, he filed a motion on notice praying for an order to set aside this Court’s decision of 22-5-2020 and extension of time for the appellant to seek leave to appeal, leave to appeal and extension of time to appeal. He withdrew the two motions of 4-8-2020 and 23-10-2020 and filed the instant application.

The applicant is now relying on this tardiness and lack of diligence of its Legal Practitioner as a good and substantial reason for the delay in bringing this application within 3 months after the judgment of the Court of Appeal on 6-3-2015.

There is nothing to show that the applicant was aware that its legal practitioner had not filed a competent appeal or had not taken the right legal steps to file one. It is obvious that the applicant was not in a position to know without being so informed, since it has no knowledge of what should be the competent legal processes. I think that in this situation, the tardiness and lack of diligence of its Legal Practitioner should be accepted as a good and substantial reason for the applicant’s failure to apply for leave to appeal or appeal within time.

This is the established judicial practice through the cases. In Imegwu V Okolocha & Ors ​(2013) LPELR-19886(SC), this Court held that “in view of the settled principle of law that a litigant should not be punished for the mistake or inadvertence of his counsel, an application for extension of time to appeal ought to be granted if the Court is satisfied that the failure to appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel.

In other words the Court must be satisfied that the excuse is availing having regards to the facts and circumstances of the case.” In Shanu v. Afribank (Nig.) Plc. (2000) 13 NWLR (Pt. 684) 392 at 403, this Court held that “Counsel’s error of judgment, if reasonable, is an acceptable explanation for delay to apply for leave to appeal or to appeal within the prescribed time is now undoubted”. In Bowaje v.

Adediwura (1976) 6 SC 143 at 147, this Court restated that- “This Court would readily exercise its discretion to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period was caused by the negligence or inadvertence of his counsel.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> I think this principle covers a situation where counsel may not have been negligent or inadvertent, but genuinely misconceived the fact or law involved in a matter, consequently causing a delay in taking the appropriate step in a given circumstance.” In Lamai v.

Orbih (1980) 12 NSCC 188 at 194, this Court restated thusly- “This Court has held repeatedly that it will not bring to bear on the fortunes of the parties to an appeal the disastrous effect of the negligence or inadvertence of Counsel to take within time, the steps prescribed by law to bring any matter properly before the Court, when proper applications are made to extend the period prescribed by law for taking such steps. In this regard, I refer to the case of Tuji Bowaje v.

Moses Adediwura (1976) 6 S.C. 143 where at p. 147, Bello J.S.C. (delivering the Ruling of this Court) said: “This Court would readily exercise its discretion to extend periods prescribed for doing an act if it is shown to the satisfaction of the Court that the failure of the party to do the act within the prescribed period was caused by negligence or inadvertence of counsel (see TAA. Doherty & Anor. v. R.A. Doherty ​(1964) 1 All N.L.R. 299 and G.B.A. Akinyede v. The Appraiser (1971) 1 all N.L.R. 162).”

Let me now consider the question of whether the grounds of the proposed appeal prima facie show good cause why the applicant should be granted leave to appeal.

I have carefully read and considered the arguments of both sides on this issue.

Learned counsel for the applicant has reproduced all the grounds in the proposed appeal in the applicant’s written address and argued that they prima facie show good cause why the appeal should be heard.

Order 2 Rule 31(2) of the Supreme Court (Amendment) Rules 2014 require that the application for extension of time to apply for leave to appeal or leave to appeal or application for extension of time to appeal be accompanied by the copy of the judgment against which the proposed appeal is to be brought, a copy of other proceedings necessary to support the complains against the judgment and the proposed grounds of appeal. These three documents must be considered to determine if the grounds of appeal prima facie show good cause why the appeal should be heard.

The law is established that in determining if the proposed grounds of appeal prima facie show good cause why the appeal should be heard, the Court is not to decide if the appeal will succeed or fail on the proposed grounds and should only decide if the grounds are substantial, arguable or triable. Experience has shown that it is difficult to draw a dividing line between the two types of decisions. In Imegwu v.

Okolocha & Ors (supra), this Court highlighted this challenge thusly – “He is however not expected to show that the appeal will succeed, yet he is expected to exhibit good grounds showing reasonable prospect of success in the appeal.” In most cases, not much is left to be determined after a Court has decided that a proposed ground of appeal is substantial or arguable or not. This is because such a decision result from the analysis of the grounds, the judgment sought to be appealed against and other proceedings.

To avoid the risk of deciding the success or failure of the grounds of appeal at this stage, the judicial practice of a cursory glance at the proposed grounds of appeal alone and pronouncing them as arguable without reasons for the conclusion, has developed and become prevalent.

The result is that applications for extension of time to appeal or seek leave to appeal are routinely granted as a matter of course contrary to the Proviso to Sub-rule (1) of Rule 31 of Order 2 of the Supreme Court (Amendment) Rules 2014 and similar provisions that prescribe that application for enlargement of time to appeal or seek leave to appeal be granted only in exceptional circumstances.

This proviso and the prescription of Sub-rule (2) of the same Rule 31 that the affidavit in support of the application be accompanied by the judgment sought to be appealed against, the proposed grounds of appeal that prima facie show good cause for the appeal to be heard and a copy of other proceedings necessary to support the complaints against the judgment place a duty on the Court to which the application is made to thoroughly scrutinize the above mentioned documents to find out if the appeal has any substance worthy of consideration so as to avoid the abuse of the appellate process by frivolous and vexatious appeals.

By this process, illegitimate appeals such as academic appeals, vexatious appeals, appeals brought for the sole purpose of enhancing the professional standing of a legal practitioner would not be allowed. Illegitimate appeals are those that are brought for purposes other than the pursuit of the substantial justice of the dispute between the parties. In Imegwu V Okolocha (2013) LPELR-19886(SC), this Court refused the application for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal on the ground inter alia that the proposed appeal had become academic.

It is glaring that such a conclusion cannot be derived from a cursory glance of the grounds of appeal.

It is in the light of the foregoing that I will thoroughly scrutinize the grounds of this appeal arising from the enforcement of an unchallenged arbitral award to find out if the grounds show reasonable prospect of success.

I do not think that ground one of the proposed appeal prima facie show such good cause. The exact text of the ground reads thusly- “GROUND ONE The learned justices of the Court erred in law when their Lordship heard the appeal herein against the judgment of the High Court of Lagos State, per Hon. Justice Olateru-Olagbegi (retired) delivered on the 4th day of July, 2013, which the Respondent were not served with the processes in this appeal. PARTICULARS OF ERROR i. The appellant did not serve the processes in this appeal on the Respondent. ii.

The rules of the Court of Appeal require that processes in respect of an appeal shall be served personally on the Appellant. iii. The processes in respect of the hearing of appeal were served on the former counsel to the Appellant – MESSRS TOYIN PINHEIRO & CO., who did not have the instructions of the Appellant to represent them at the Court of Appeal. iv. The Appellant was not aware of the proceedings conducted at the Court of Appeal, till judgment was delivered. v.

The Respondent is aware of the address of the Appellant but refused and neglected to effect personal service of the Notice of Appeal and processes issued at the Court of Appeal on the Appellant. vi. There is no proof of service of the processes in respect of hearing of the appeal on the Appellant.”

What is clear from this ground is that the applicant is alleging that the processes in that appeal were not served personally on it, that the processes were served on its legalpractitioners at the trial Court and that the said legal practitioners do not have its instructions to represent it at the Court of Appeal. Particulars of error No. iii that contains these admissions defeats ground one and renders it unarguable and frivolous by virtue of Order 2 Rules 3 and 4 of the Court of Appeal Rules 2016 which provide that- “3.

Where in any proceeding in the Court below, a party has given an address for service, notice of appeal from any decision made under such proceeding may be served on such party at such address for service, and notice of any application preparatory or incidental to any such appeal, may be served in like manner at any time before the date on which the Respondent gives notice of his address for service in accordance with the immediately following Rule. 4.-(1) Every person who by virtue of service on him of a notice of appeal becomes a Respondent to any appeal or intended appeal shall within thirty days after service on him of the notice of appeal file twenty copies with the registrar of the Court below notice of a full and sufficient address for service in such number of copies as the said registrar shallrequire.

The registrar of the Court below shall forthwith send a copy thereof to be served on the Appellant. (2) Such notice may be signed by the Respondent or his legal representative. (3) If any Respondent fails or omits to file such notice of address for service, it shall not be necessary to serve on him any other proceeding in the appeal or any notice of hearing thereof.”

The applicant, upon the service of the notice of appeal against the judgment of the trial High Court to the Court of Appeal was bound to file with the Registrar of the High Court, 20 copies of a notice of full and sufficient address for service within 30 days of the service of the notice of appeal on its Legal Practitioner at the High Court. The particulars of error of ground one did not allege that it filed such notice of address. Without filing such notice, the complain in ground one lack substance, is frivolous and does not deserve a hearing.

It is obvious from the clear terms of the judgment of the High Court and the Court of Appeal that Grounds 2, 3, 4, 5, 6, 7 and 8 of the proposed notice of appeal which deals with the merit of the judgment do not prima faciedisclose good cause for leave to bring the appeal. The record of the judgment of the High Court that the applicant did not refuse to recognize the arbitral award and was only opposed to the enforcement of award No. 3 on the ground that the respondent did not show the existence of the facts that justify the loss of the applicant’s relief from forfeiture.

The trial Court refused to enforce the award on the ground that it has no jurisdiction to determine if the applicant complied with the directives in award no. 3, that it is the sole arbitrator that has that power and that award no. 3 is therefore inconclusive.

The Court of Appeal reversed the decision of the trial Court, holding that the award was clear, unambiguous, final and conclusive, that the applicant herein accepted the award, that the trial Court should have enforced the award and that there was no basis for refusing to enforce the award. The Court of Appeal set aside the decision of the trial Court refusing to enforce the award and the order striking out the application and enforced the said award.

The gist of the applicant’s case in grounds 2 to 8 of its proposed notice of appeal isthat the award is not final and conclusive in that it directs that the applicant to hand over a copy of the Fire and General Insurance of the Property to the respondent and carry out repair works on the property within six months from the date of the award, that the applicant shall forfeit occupation of the property under the sublease if it fails to comply with this directive within six months, that the question of whether the applicant has complied with the directives in the award remains open for determination by the Arbitrator and that until the arbitrator determines that question, the award is not final and remains inconclusive and unenforceable.

It is clear from the express terms of the award that the arbitrator intended it to be a final and conclusive resolution of the dispute between the parties and did not leave any factual issue for further determination by the Arbitrator. The prescription of a period of six months within which the directives in the award should be carried out, did not make the award inconclusive. The award became enforceable upon the expiration of the said period of six months.

In any case, the law implies in the clause in thesub-lease to refer disputes arising under it to arbitration, the intention and agreement of the parties to the contract that an award made in the arbitration would be final and binding on the parties. This Court approved the statement of law on the effect of an arbitral award in Halsburys Laws of England, Fourth Edition, paragraph 611 at page 323 in Kano State Urban Dev. Board V Fanz Construction Co. Ltd (1990) 6 SC 103 thusly – “The effect of the award is such as the agreement of reference expressly or by implication prescribes.

Where no contrary intention is expressed and where such provision is applicable, every arbitration agreement is deemed to contain a provision that the award is to be final and binding on the parties and any person claiming under them respectively. The publication of the award thus extinguishes any right of action in respect of the former batters indifference but gives rise to a new cause of action based on the agreement between the parties to perform the award implied in every arbitration agreement.”

The issue of whether the award is enforceable can be determined by the Court to which an application to enforce the award is made by virtue of the jurisdiction given to it by Section 31 of the Arbitration and Conciliation Act to enforce the award.

Since the award was made in an arbitral proceedings, brought pursuant to a written agreement to refer disputes in the sub-lease to arbitration, it determined the applicant’s contractual liability to repair the lease property and deliver a copy of the Fire and General Insurance of the property to the respondent and was not only declaratory and the applicant accepted the award and did not challenge its validity, the trial Court was bound to summarily enforce it by virtue of Section 31 of the Arbitration and Conciliation Act.

There is no feature in the case that renders the enforcement of the award unreasonable or wrong. See Kano State Urban Dev. Board V Fanz Construction Co Ltd(supra). There was no doubt about the award. By virtue of the said Section 31, the award ought to be summarily enforced as it is by the trial Court as an existing judgment as there is no doubt about it. See Commerce Assurance Ltd V Alli (1992) 4 SCNJ 145.

This protracted litigation over the summary enforcement of an unchallenged arbitral award defeats the purpose of the arbitration clause in the sub-lease agreement. The parties to an agreement include an arbitration clause to avoid litigation and resolve their dispute through arbitration, to obtain a fair, consensual and non-hostile resolution of disputes by an impartial third party without unnecessary expense and delay.

In the light of the foregoing, I hold that the grounds of the proposed appeal do not prima facie show good cause why the appeal should be heard.

As it is, the affidavit in support of the application has shown good and substantial reasons for the failure to appeal or apply for leave to appeal within time, but the grounds of appeal prima facie do not show good cause for the appeal to be heard. It is settled case law that by virtue of the provisions of Order 2 Rule 31 of the Supreme Court (Amendment) Rules 2014 and similar other provisions, these two conditions must co-exist before this application can be granted.

However, the Courts in many decisions have given paramount consideration to the requirement that the proposed grounds of appeal must have substance. So that in cases where the affidavit did not disclose reasons orsubstantial and good reasons for the delay, but the proposed grounds of appeal show a reasonable chance of success, the Courts have exercised their judicial discretion to grant the application to do substantial justice. See for example Minister of Petroleum and Mineral Resources & Anor V Expo Shipping Line Nig Ltd (2010) LPELR-3189(SC).

Since the grounds of this appeal do not prima facie show good cause for the appeal to be heard, this application is hereby refused. It is accordingly dismissed.

The applicant shall pay costs of 500,000.00 naira to the Respondent.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead ruling delivered by my learned brother, Agim, JSC, and I agree with him that this Application lacks merit and must be dismissed.

The Application pertains to leave of Court, and whenever leave of Court is a condition precedent for exercise of any right, the discretion of the Court is implied, and a party applying to the Court to exercise its discretionary power in his favour, must put up a convincing argument showing that in fact and in law, he is entitled to a decision, which he has applied for. See Re: Alase (2002) 10NWLR (Pt. 776) 553.

In this case, the Applicant is praying for extension of time to seek leave to appeal on grounds of facts or of mixed law and facts, leave to appeal on the said grounds, and an extension of time within which to appeal on the said Grounds of Appeal, and the question is whether it provided sufficient materials and reasons to have the Application granted in its favour. To this end, it must show that the delay in bringing the said Application is neither willful nor inordinate and that there are good and substantial reasons for failure to appeal within the prescribed time.

More importantly, the grounds of appeal must prima facie show good cause why the appeal should be heard, and not why the appeal should be allowed – see Obikoya V. Wema Bank Ltd. (1989) 1 NWLR (Pt. 96) 157, wherein Obaseki, JSC, expounded as follows: The grounds of appeal required to be exhibited are only to show good cause why the appeal should be heard. The rule does not require the grounds to show good cause why the appeal should be allowed.

Although in both cases, the grounds of appeal should be substantial, the certainty required in the latter case, does notnecessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground, which raises substantial issues of fact or law for the consideration of the Court. It is a ground, which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground, which evokes a serious debate as to the correctness of the decision of the Court below.

It is a ground, which taxes the intellect and reasoning faculties of the appeal Judges. It is a ground, which is not frivolous. The two conditions must co-exist; if one is missing, the application must fail. See Nwora V. Nwabueze (2011) 15 NWLR (Pt. 1271) 467.

I have gone through the Affidavit in support of this Application, and though the Applicant has shown good and substantial reason for its failure to appeal within the prescribed time, the proposed grounds of appeal exhibited do not satisfy the second condition.

My learned brother, Agim, JSC, expounded greatly on why this is so, and I do not wish to belabour the point. Suffice it to say that the grounds of appeal do not prima facie show good cause why the appeal should be heard. Thus, Ialso dismiss the Application, and I also abide by the order as to costs.

UWANI MUSA ABBA AJI, J.S.C.: The Appellant/Applicant sought vide a motion on notice no. SC/CV/102/2021 for the exercise of the discretionary power of this Honourable Court to grant its application for: 1.

AN ORDER of this Honourable Court enlarging the time within which the Applicant may seek leave to appeal on ground 1, 2, 3, 4, 5, 6, 7 and 8 which are grounds of facts or mixed law and facts, contained in the Proposed Notice of Appeal (Exhibit J), against the decision of the Court of Appeal, Lagos Judicial Division (Coram: Sidi Bage, Joseph Ikyegh and Tijjani Abubakar JJCA) in Appeal No: CA/L/990/2013 between Ake Shareholdings Limited v. Optimum Construction & Property Development Company Ltd. delivered on 6th March, 2015. 2.

AN ORDER of this Honourable Court granting leave to the Applicant to appeal on grounds 1, 2, 3, 4, 5, 6, 7 and 8 which are grounds of facts or mixed law and facts, contained in the Proposed Notice of Appeal (Exhibit J) against the decision of the Court of Appeal, Lagos Judicial Division (Coram: Sidi Bage, Joseph Ikyegh and Tijjani AbubakarJJCA) in Appeal No: CA/L/990/2013 between Ake Shareholdings Limited v. Optimum Construction & Property Development Company Ltd delivered on 6th March, 2015. 3.

AN ORDER of this Honourable Court enlarging the time within which the Applicant may appeal on grounds 1, 2, 3, 4, 5, 6, 7 and 8 which are grounds of facts or mixed law and facts, contained in the Proposed Notice of Appeal (Exhibit J) against the decision of the Court of Appeal, Lagos Judicial Division (Coram: Sidi Bage, Joseph Ikyegh and Tijjani Abubakar JJCA) in Appeal No: CA/L/990/2013 between Ake Shareholdings Limited v. Optimum Construction & Property Development Company Ltd. delivered on 6th March, 2015.

The application is supported by an affidavit of 9 paragraphs and further affidavit filed on 11-3-2021 and further affidavit filed on 12-3-2021. On the other hand, the Respondent filed a counter-affidavit of 4 paragraphs in opposition of the application. The issue for determination distilled by the Appellant is “Whether the applicant is not entitled to the reliefs sought, considering the facts and circumstances of this application.”

After due and diligent consideration of same, my learned brother, EMMANUEL AKOMAYE AGIM, JSC, ruled that “since the grounds of this appeal do not prima facie show good cause for the appeal to be heard, this application is hereby refused. It is accordingly dismissed” and awarded costs of N500,000.00 to the Respondent.

I agree that this exercise of discretion by my learned brother was judicious and judicial to invite my concurrence and I concur to it that this appeal be dismissed.

MOHAMMED LAWAL GARBA, J.S.C.: I have read the lead ruling written by my learned brother, Emmanuel Akomaye Agim, JSC, in this application and agree that it is bound to fail since the grounds of the proposed appeal do not, prima facie, show good cause why the appeal should be heard.

The law is now trite that one of the conditions to be satisfied for the grant of an application for extension of time to appeal to this Court, under the provision of Order 2, Rule 31 (2) (c) of the Supreme Court Rule, (as amended) is that the grounds of appeal attached to the Affidavit in support thereof, should, prima facie, show good cause why the appeal should be heard. See Solanke v. Somefun (1974) 1 SC, 149, Bowaje v. Adediwuara(1976) 6 SC, 143, Alagbe v. Abinbola (1978), Universal Ins. Co. Ltd. v. Osemwengie (2006) All F WLR (pt. 295) 730, Oladele v.

Aromolaran II (1993) 3 NWLR (pt. 181) 564.

For the detailed reasons given in the lead ruling, which I adopt, I join in refusing and dismissing the application in the terms set out therein.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: I have had a preview of the draft of the lead ruling just delivered by my learned brother Emmanuel AkomayeAgim, JSC and I agree with the reasoning and conclusion that the application did not show good cause for a favourable exercise of the discretion of this Court. ​ I also dismiss the application and I abide by the consequential orders in the lead ruling including the order as to costs. Application dismissed.

Judgment

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Borno State in Suit No. BOHC/MG/CV/48/2017, delivered on 23/04/2019 by Hon. Justice B. Karumi.

In brief, the facts of the case is that the Appellant’s husband and the Respondent were both police officers who served at the Borno State Command of the Nigeria Police Force, Maiduguri. The case of the Respondent who was the claimant at the lower Court is that in 1981, himself and the Appellant’s husband were occupants of House No. B121 of Ibrahim Taiwo Housing Estate and were in quiet possession with their families for over 38 years. That the payment of rent was then done by the Police authorities until such payment was stopped by the then Inspector General of Police, Estem Eyame.

That upon the aforesaid stoppage, the two of them sought the intervention of one Haruna (deceased) and one Mairo Ali (a former Asst. Commissioner of Police) to allow them to continue to occupy the premises and to pay the rent. That based on this intervention, the General Manager of the Housing Corporation which was in control of the Estate approved their request, and they therefore became co-owners with the Appellant’s husband to House No. B121.

That with the approval, the General Manager asked that only one name be submitted, and that should be the name of the most senior of them, according to housing policy. That he was the most senior and therefore his name ought to be submitted but because he was out of town on special duty, the name of the Appellant’s husband was submitted.

It is also the case of the Respondent that when in 2003 the houses were sold on owner-occupier basis, he and the Appellant’s husband contributed N5000 to pay for the processing form, and when the house was sold at N720,000.00 he made the payments in two instalments because his colleague said he had no money. That he had to make the payments in order to avoid losing the house, and on the understanding that his colleague would later refund the half which represents his own amount for the house. That upon payment, the deed of Assignment bearing his colleague’s name was released to him.

However, when his colleague upon further payment of additional money to the Housing authority requested for title document, he was turned down, and the deed of assignment was not released to him by the Housing authority. That without his knowledge, his colleague (the appellant) went to Court against the housing authority and got Judgment in his favour. It is upon these facts that the Respondent went to Court also against the Appellant’s husband praying for the following reliefs: a. Declaration that both claimant and the defendant are co and lawful owners of the house No.

B121 Ibrahim Taiwo Housing Estate. b. An order restraining the defendant or whosoever from claiming the sole ownership of the house excluding the claimant’s co – rights and ownership over the property. c. An order directing the defendant to refund N360,000 (Three Hundred and Sixty Thousand Naira) being half of the amount paid by the claimant to housing authority. d. Perpetual injunction restraining the defendant by himself or privies, agent or servant from trespass into his own portion of the house.

​On the other hand the case of the Appellant’s husband is that there was never any agreement that the most senior officer’s name should be submitted to the housing corporation for registration. That sometimes in 1986, when applications were being made for these houses as tenants in the Estate, the Respondent showed no interest when he told him that they should apply. That he then applied in 1986 to the Housing Corporation and got approval and was given an offer.

It is also his case that he only granted the Respondent’s request that he allowed his family stay in the house as he would soon go on transfer since they were colleagues. That since 1986, when he was offered the house he was paying the rent personally to the Housing Corporation except when he would not be around, the money was given to the Respondent to pay for him.

It is further his case that he applied for and was offered the house for sale by Borno State Government through the Ministry of Housing and Environment on its policy of owner/occupier basis on 16/5/2003 at the price of N720,000 which he paid for in 6 instalments. That he also paid for the deed of assignment but was not given as he was told that it was not ready. That when he went later to collect it, he was told that it had been collected by somebody whose name the Ministry refused to disclose to him.

It is also his case that after repeated demands for the title deed without positive result from the Ministry he sued the Ministry for it, and Judgment was given in his favour and the Ministry was therefore ordered to execute the deed of assignment in his favour.

The Respondent’s case is encapsulated in his 20 paragraph amended statement of claim, while the Appellant’s case is as contained in his 20 paragraph amended statement of defence.

In the trial, the Respondent testified and called one witness by name Mairo Ali. Three documents were tendered and admitted in evidence. The Appellant testified in his defence and also tendered nine documents which were admitted in evidence. One other document was tendered from the bar and admitted in evidence bringing to ten documents tendered and admitted in evidence at the instance of the Appellant.

All witnesses for both the Appellant and Respondent testified by adopting the witness statements on oath of the witnesses. At the close of the trial, parties filed and exchanged final written addresses which they subsequently adopted.

In the Judgment, the trial Court gave Judgment in favour of the Respondent. Not satisfied with it, the Appellant appealed to this Court through the Notice of Appeal filed on 23/05/2019. The Notice of Appeal contains five grounds of appeal inclusive of the omnibus ground of appeal. However, he sought no relief in his Notice of Appeal.

The Record of Appeal duly complied and transmitted, parties filed their respective briefs of argument. The appeal came up for hearing on 10/11/2020, whereat, M. M. Abdullahi who appeared for the Appellant adopted the Appellant’s amended brief of argument dated 24/09/2020 and filed on 14/10/2020; settled by him. The Respondent’s amended brief of argument, dated 22/10/2020 and filed on 26/10/2020 was adopted by Mr. Adam Abdullahi, who held the brief of A. Abdul-Rahman, who settled the amended Respondent’s brief of argument.

M. M. Abdullahi also adopted the appellant’s reply brief of argument, dated 30/10/2020, and filed on 04/11/2020. The Appellant formulated four issues from his five grounds of appeal. The Respondent adopted the said issues. The issues as formulated are:

1. Whether the Attorney General of Borno State and Ministry of Housing and Rural Electrification Borno State sued as 2nd and 3rd defendants at the lower Court are necessary parties in this suit in view of the facts that both appellant and respondent traces their root of title over house No. B121 to them and all exhibit ST1 to ST10, and GA3, were issued by them. Assuming answer to issue (1) above is in affirmative. Whether the respondent is privy to judgment in suit No:- BOHC/MG/CV/53/15 delivered on the 17th March, 2016 i.e. exhibit ST10. (Distilled from ground of appeal Number three (3). 2.

Whether by virtue of exhibit ST10, (the judgment of High Court of justice No.1, Maiduguri, Borno State) delivered on 17th March, 2016 over house No. B121 between appellant, the Attorney General of Borno State, and Ministry of housing and rural Electrification Borno State, the claimant/respondent case is caught by doctrine of estoppel and or an abuse of Court process which robbed the lower Court of jurisdiction to this case. (Distilled from ground of appeal Number (4). 3.

Whether by virtue of glaring evidence of defendant/appellant and exhibit GA3, ST1 to ST10, admitted in evidence before the lower Court the appellant has exclusively proved his title over house No. B121 on the balance of probability? (Distilled from ground of appeal Number 1 and 2). 4. Whether the lower Court was right in holding that respondent has proved his case and is entitle to jointly share house No. B121 Ibrahim Taiwo housing estate Maiduguri, with the appellant. (Distilled from ground of appeal Number (5).

The issues are apt for the exhaustive determination of this appeal. I hereby adopt them. Issue One Whether the Attorney General of Borno State and Ministry of Housing and Rural Electrification Borno State sued as 2nd and 3rd defendants at the lower Court are necessary parties in this suit in view of the facts that both appellant and respondent traced their root of title over house No. B121 to them and all exhibit ST1 to ST10, and GA3, were issued by them.

Assuming answer to issue (1) above is in affirmative. Whether the respondent is privy to judgment in suit No:- BOHC/MG/CV/53/15 delivered on the 17th March, 2016 i.e. exhibit ST10.

Arguments of Counsel Appellant’s Counsel submits that the Attorney – General of Borno State and Borno State Ministry of Housing and Rural Electrification Borno State sued as 2nd and 3rd defendants in this suit whose names were subsequently struck out are necessary parties to this case pointing out that the Appellant traced his root of title over the house to the Borno State Ministry of housing and rural electrification and Attorney General of Borno State.

Counsel submits that a necessary party to an action is one that it is desirable that he should be bound by the result of the action, and without which the question in controversy cannot be effectively and completely settled unless he is a party. Counsel relies on the case of Adefarasin vs. Dayekh (2007) All FWLR (Pt. 348) page 911 at 914.

​Counsel further submits that by virtue of the Appellant’s pleadings, the evidence of the witnesses and Exhibits “GA3” and “ST1” to “ST10” issued by the office of Attorney – General of Borno State, Ministry of Housing and Rural Electrification and Ministry of Housing and Environment, the lower Court was wrong in striking out the 2nd and 3rd defendants from the suit and thus has occasioned miscarriage of justice to the Appellant. Counsel urges the Court to resolve this issue in the Appellant’s favour.

On the 2nd leg of issue one, Counsel submits that since the Respondent frivolously traces his root of title over house No. B121 to the Borno State Ministry of Housing and Rural Electrification and Attorney – General of Borno State just as the Appellant did, the Respondent is privy to Judgment in Suit No. BOHC/MG/CV/53/15 which was delivered on 17th March, 2016, tendered as Exhibit “ST10”. Counsel refers the Court to pages 46 – 49 of the record of appeal. On the term “privy”, Counsel relies on the case of Agbogun Leri vs. Depo (2008) All FWLR (Pt. 408) 240 at 245.

It is therefore contended by Counsel that since the Respondent is a privy to Judgment in Suit No. BOHC/MG/CV/53/15 the Respondent’s case in the instant appeal is caught by doctrine of estoppel, and that the lower Court therefore lacks jurisdiction to hear same. The Court is therefore also urged to resolve this issue in favour of the Appellant.

​For the Respondent, it is submitted that the Respondent has no claim against the 2nd and 3rd defendants who were initially made parties because his case and the reliefs sought therein can be determined without the two defendants. That they are therefore not necessary parties. Respondent’s Counsel submits that a person is a necessary party to an action where it is desirable that he should be bound by the result and where the question in controversy cannot be effectively and completely settled unless he is a party. Cited in support of this submission is the case of Adefarasin vs.

Dayekh (2007) All FWLR (Pt. 348) 911 at 914 para E – G. Counsel further submits that by Order 17 Rule 16(1) of the Borno State High Court (Civil Procedure) Rules 2017, no suit shall be defeated for non joinder of a party, and that the Court can deal with the matter in controversy as regards to the rights of the parties before it. Counsel urges the Court to resolve this issue in favour of the Appellant.

​Taking on the second leg of issue one, Counsel submits that Appellant’s contention that Suit No. BOHC/MG/CV/48/17 is caught by doctrine of estoppel, and that the Court lacks jurisdiction to hear same is misconceived. He submits that privies in estate are never applicable in the instant case because both of the parties claimed ownership through Ministry of Housing and Rural Electrification, and that the Respondent claimed that they are co-owners.

It is further submitted for the Respondent that the Appellant who initiated Suit No. BOHC/MG/CV/53/15, ought to join the Respondent in the suit because the inclusion of the Respondent in the suit would have determined the issue of co-ownership; that without doubt the Respondent was a necessary party in that suit but was not joined, and that having not been joined he could not be bound by the Judgment or decision of which he had no notice and could not participate therein. Counsel relies on the case of Bello vs. INEC (2010) All FWLR (Pt. 526) 392.

Counsel further submits that the issues in the two suits are different and therefore the existence of the previous suit cannot operate as estoppel against the commencement of Suit No. BOHC/MG/48/17. The Court is therefore urged to discountenance with the Appellant’s submission on the second leg of issue one also.

Resolution of Issue One 1st leg of issue one The resolution of issue one should necessarily start with a proper understanding of the meaning and import of who is a proper and necessary party to an action. In the case of Amaechi vs. Governor of Rivers State & Ors (2017) LPELR-43065 (CA), the Court held: “The law is well settled that, a person will be a proper and necessary party when his or her joinder as a party to the action will enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the action.

Therefore, the interest of the Appellant can not be said to be oblique in the instant matter, rather, his interest is directly in issue in ensuring that justice is done in the subject-matters of the inquiry to be conducted by the 3rd Respondent. This is our firm view and we so hold. See the cases of: (1) Green v. Green (1987) NSCC P. 115; (2) Ede v. Nwidenyi (1988)12 S.C. (Pt.3) p.12 and (3) Carrena v. Akinlase (2008)14 NWLR (Pt.1107) p. 262.” Per OMOLEYE, J.C.A (Pp. 97-98, paras. E-C ). The case of Global West Vessel Specialist (Nig) Ltd vs.

Nigeria NLG Ltd & Anor (2017) LPELR-41987 (SC) also presents another view of who is a proper/necessary party to a suit. Who is a proper/necessary party to a suit, was thus defined in that case: “It has long been held that proper parties are those who though not interested in the plaintiff’s claim, are made parties for some good reasons, for example, in an action instituted to rescind a contract, any person who was active or concurring in the matters which gave the plaintiff the right to rescind, is a proper party to the action.

Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceeding could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. See Chief Abusi David Green v. Chief (DR) E. T. Dublin Green (1987) NWLR (pt. 61) 481 (1987) LPELR SC206/1986; Amon v.

Raphael Tuck & Cons (1956) 1 WB 357; Re Vandervills Trust (1971) A.C. 812; Re Vandervelle (1969) 3 All ER 497.” Per ARIWOOLA, J.S.C ( Pp. 31-32, paras. D-B ). ​See also T. Delak Distribution Service Ltd & Anor vs. Ugbowanko (2018) LPELR-46480 (CA), per Garba, JCA (Pp. 28 – 29, paras F – C).

The decision of whether a party is a necessary party or not, goes beyond the claims/reliefs sought by the plaintiff/claimant in the case. It involves a consideration of the pleadings and evidence adduced in support of the pleaded facts. The principal claim of the Respondent is in paragraph 20(a); which is, “Declaration that both claimant and the defendant are co and lawful owners of the house No. B121 Ibarhim Taiwo Housing Estate.” The other claims, to wit, B, C, and d are dependent on the success or otherwise of (a).

The parties in respect of which issue one revolves are (i), the Attorney General of Borno State, who was initially joined in the suit as 2nd defendant, and (ii) Ministry of Housing and Rural Electrification, sued as 3rd defendant. However, on the application of the Respondent, their names were struck out. Now in the Respondent’s amended statement of claim, it was averred that the house No.

B121 was paid for by the Respondent in two instalments for himself and the Appellant at the cost of N720,000; with the view that the Appellant would refund half of the money to him whenever he got the money, and to avoid them losing the house to other interested parties. The payment was made to the Ministry of Housing, and into the coffers of Borno State Government. See paragraphs 10, 11, 12, and 13 of the claimant’s amended statement of claim at page 12 of the record of appeal.

In paragraph 14 the Claimant/Respondent pleaded that upon completion of payment for the house, a deed of assignment was issued to him bearing the name of the Defendant/Appellant. It is also averred in the Respondent’s amended statement of claim that despite his full payment for the house, the Appellant made additional payment to the housing authority in order to take advantage of having his name on the title document, and to deny him his right of ownership over the house as co-owners.

That he made a complaint on this to the then Area Commander and the former Secretary to the State Government Baba Ahmed Jidda, who both acted on the complaint and response by the legal unit of the housing corporation. Further pleaded is that upon completion of the additional payment for the house to the housing authority the defendant (now appellant) demanded for title document in respect of the house but the housing authority refused to give him the deed of assignment in respect of the house as same had been released to him after payment.

That he was not aware that there was a case before the High Court in respect of the house against housing authority until after the defendant got Judgment in his favour. ​In his amended statement of defence, the defendant denied that payment for the house was made to the housing authority by the Respondent. He averred that he made payment for the house which was offered to him on his application on owner-occupier basis in six instalments and upon completion he paid for the deed of assignment which could not be given to him soon because, he was informed that it was not ready.

That when he subsequently demanded for it he was informed that it had been collected by somebody, who they refused to disclose to him. That after repeated demands, without positive response from the ministry he sued the ministry for the title deed before High Court 1 and got Judgment in his favour whereby the Court ordered the ministry to execute the deed of assignment in his favour. He pleaded the Judgment which was subsequently admitted in evidence at the trial as Exhibit “ST10”.

It is important to note that the writ of summons by which the Respondent commenced his action was endorsed with his statement of claim, subsequently amended; the written statement on oath of the witnesses. The documents intended to be put in evidence were frontloaded. See page 19 of the record of appeal for the list of documents to be relied upon at the trial as frontloaded by the Respondent. The defendant/Appellant’s amended statement of defence was accompanied by his witness statement on oath. He also frontloaded the documentary Exhibits he would rely on at the trial.

I refer to the defendant’s list of Exhibits at page 33 of the record of appeal. At the trial, the Respondent tendered Exhibits “GA1” “GA2” and “GA3”, while the Appellant tendered Exhibits “ST1”, “ST2”, “ST3”, “ST4”, “ST5”, “ST6”, “ST7”, “ST8”, “ST9” and “ST10”.

It must be noted that all the Exhibits, tendered by both the Appellant and Respondent conspicuously bear the Appellant’s name. The following facts on record also call for special attention:- (i) The Respondent pleaded and testified that upon payment of the full price for the house, he was given the deed of assignment for the said house. The deed of assignment was admitted in evidence as the Exhibit marked ”GA3”. The deed of Assignment is between Borno State Government and Mr.

Stephen Teri (the Appellant). (ii) The Respondent also pleaded and testified to the fact that upon the Appellant making further payment, he demanded for the deed of assignment but it was not given to him because it was he (Respondent) who paid for the house. Also the Appellant also pleaded, and this was not replied to by the Respondent, that upon completion of payment for the house, he paid for the deed of assignment but it could not be given to him immediately because it was claimed that it was not ready.

However, when he subsequently went to collect it, he was informed that it had been collected by somebody whom they refused to disclose to him.

It is therefore clear that the housing corporation or ministry of Housing and Environment, or whatever gave the deed of assignment to the Respondent despite the fact that it did not bear his name, and when the Appellant, whose name appears on the deed of assignment and who had paid for the said deed (see Exhibit “ST2”) demanded for it, he was refused.

He had to sue for it, and most surprisingly, I should state, the said Ministry of Housing and Rural Electrification, Borno State, and Attorney General, Borno State who were sued by the Appellant to Court for the deed of assignment despite repeated demands without positive response, refused to join the Respondent or inform him to apply to join in the suit so they could together defend their decision to give the deed of assignment to him instead of the Appellant. And to make matters worse, they put up no defence to the said Suit No.

BOHC/MG/CV/53/15, but chose to rest their case on the claimants case and lost, in the result of which they were ordered to execute a deed of assignment in favour of the Appellant. ​The Ministry of Housing and Rural Electrification, Borno State, and Attorney General Borno State were offered a unique opportunity of extricating themselves from their obvious dereliction of duty with respect to the role played by them in Suit No. BOHC/MG/CV/53/15, but chose to take the easy way out by the Respondent’s misinformed decision to withdraw the suit against them.

To say the least, this is quite unfortunate. By their action, we now have a situation in which, there is in existence a Judgment in Suit BOHC/MG/CV/15 in favour of the Appellant, and the obviously indefensible Judgment in Suit BOHC/MG/CV/48/17 in favour of the Respondent, but now on appeal.

It should have been obvious to the learned trial Judge that in the face of the pleadings in this case, the written statements on oath of witnesses, and the frontloaded documents that the Respondents’ claim could not be fairly, completely, effectively and finally decided or determined by him without the two being made parties, either as Co-claimants or Co-defendants, so that they can respond to the averments made by the parties that concern them. The Respondents’ Counsel refers this Court to Order 17 Rule 16(1) of the High Court of Borno State (Civil Procedure) Rules, 2017 which provides:

“No proceedings shall be defeated by reason of misjoinder or non-joinder of parties and a Judge may deal with the matter in controversy so far as regards the rights and interests of the parties actively before him.” What this rule provides is that a matter cannot be declined hearing merely on the ground of misjoinder or non-joinder of parties.

It however does not stop the Court hearing a matter in which there is either misjoinder or non-joinder of necessary parties from making appropriate orders either to strikeout such misjoined parties or to order the inclusion of such necessary but non-joined parties, as in this case where they were indeed made parties but were wrongly struckout, and therefore made an issue in this appeal.

The first plank of issue one must be, and is hereby resolved in favour of the Appellant and against the Respondent.

I shall now proceed to consider the second plank of the first issue. I want to commence it with an appreciation of the definition of the term “Privy”. The definition of who is a privy in the case of Agbogunleri vs. DEPO & Ors (2008) LPELR-243 (SC) is apt. In the said case, the Supreme Court defined privy thus:

“But, who is a privy? In Arabio v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.” Per MUHAMMAD, J.S.C (P. 23, paras. C-D). See also the case of Makami vs. Umaru (2013) LPELR-20799 (CA), Pp. 12 – 13, paras G – B. It is evident from the pleadings and evidence that both the Appellant and Respondent traced their title to the Ministry of Housing and Electrification and Ministry of Housing and Environment.

No doubt, it is appropriate to define both the Housing Corporation represented by the Ministry and Rural Electrification, Borno State and the Attorney General, Borno State as privies of the Appellant and the Respondent. However, it amounts to gross misconception and misapplication of the law to hold that the Respondent, is privy to the Respondent, in respect of Judgment in Suit No. BOHC/MG/CV/53/15, and is therefore caught up by estoppel to disentitle or disqualify him to maintain action in the suit on appeal.

In the first place, as pleaded by the Appellant in the instant suit on appeal, and this was not traversed by the Respondent the defendants in Suit No. BOHC/MG/CV/53/15 refused to disclose to him the name of the person who collected the deed of assignment from the Housing Corporation without his authorization. Therefore, the Appellants’ action in the said suit was against the Ministry of Housing and Rural Electrification, Borno State, and the Attorney General of Borno State only.

In the said suit, his action was for an order of specific performance, compelling the execution of a deed of assignment with respect to the house No. B121 Federal Low Cost Housing Estate also known as Ibrahim Taiwo Estate Maiduguri. The Respondent pleaded and testified that he was not aware of the pendency of this suit until after Judgment. There is no contrary evidence from the Appellant that the Respondent was aware of the proceedings in that case and decided to sit down and watch. In the case of Chief Emmanuel Bello vs.

INEC & 2 Ors (2010) LPELR-767 (SC), it was held interalia: “… There is no doubt that PDP and Haske Hananiya were necessary parties to the suit before the trial Court. They were not joined. Not having been joined they could not be bound by a judgment or decision of which they had no notice and which they could not participate in …” per Mahmud Mohammed, JSC (Pp. 56 – 57 paras F – A).

More importantly, the contention of the Appellant that the Respondent was by reason of the Proceedings in Suit No. BOHC/MG/CV/53/15 caught up by estoppel is not tenable. The Appellant did not plead estoppel in his amended statement of defence, and cannot therefore raise it in this appeal. On this, I refer to paragraphs 18 and 19 of the Appellant’s amended statement of defence in which he pleaded the Judgment in the said Suit No.

BOHC/MG/CV/53/15 only to show that after repeated demands for the title deed without positive response from the Ministry, he sued the Ministry for his title deeds and got Judgment in his favour; and not as estoppel. This is also clear from paragraph 20 of the said amended statement of defence in which it is stated: “Whereof the 1st defendant shall urge this Honourable Court to dismiss the claimant’s claim as it is frivolous, baseless and lacks merit.”

In the case of Dorsu & Ors vs. Eyegbangharen & Ors (2019) LPELR-48300 (CA), the Court held: “it is settled law that estoppel per rem judicatem is usually pleaded as a defence. And where a plaintiff fails to file a reply in respect of a plea of estoppel per rem judicata, the failure is treated as a denial of the previous suit or suits pleaded. See Potter v. Haruna Bako Kolo (1993) 9 NWLR (Pt. 317) 254 and Alhaji Madi Mohammed Abubakar v. Bebeji Oil and Allied Products Ltd (supra). In the case of Clay Industries (Nig.) Ltd. V.

Adeleye Aina & Ors. (1997) 7 SCNJ 491 at 509, Per Iguh, JSC, the Supreme Court stated the law in respect of estoppel succinctly as follows:- “It is a general principle of law that estoppel must be pleaded before the trial Court .” See also the cases of Obanye v. Okwunwa (1930) 10 NLR 8; Sowa v. Amachree (1944) 10 WACA 164.” Per ADUMEIN, JCA (Pp. 17 – 18, paras. F –D ). Having not pleaded estoppel, same cannot avail the Appellant. The issue is therefore resolved in favour of the Respondent and against the Appellant.

Issue Two Whether by virtue of exhibit ST10, (the judgment of High Court of justice No.1, Maiduguri, Borno State) delivered on 17th March, 2016 over house No. B121 between appellant, the Attorney General of Borno State, and Ministry of Housing and Rural Electrification Borno State, the claimant/respondent case is caught by doctrine of estoppel and or an abuse of Court process which robbed the lower Court of jurisdiction to hear this case.

Arguments of Counsel Issue two as it relates to Counsel’s argument that Exhibit “ST10” (the high Court of Justice No. 1 Maiduguri, Borno State delivered on 17th March, 2016 over house No. B121 between the Appellant, the Attorney – General of Borno State and Ministry of Housing and Rural Electrification Borno State, the Respondent’s case is caught by doctrine of estoppel has been fully considered in the second leg of issue one. Therefore, I adopt the reasoning and conclusions reached therein, and hold that same is resolved in favour of the Respondent and against the Appellant.

​What therefore remains to be considered in issue two is the submission, that by virtue of the said Judgment tendered and admitted in evidence as Exhibit “ST10”, the Respondent’s suit on appeal herein is an abuse of Court process and robbed the lower Court of jurisdiction to hear same.

Counsel’s submission is that the Respondent’s Suit No. BOHC/MG/CV/48/17 is not initiated by due process of law and the subject matter has already been litigated upon by a Court of competent jurisdiction. Counsel refers to the case of Intercontinental M. Bank vs. Union Bank (2004) Vol. 18 (Pt. 1) NSCQR page 134 at 155, para F – G as to what would in law amount to abuse of Court process. Counsel urges this Court to resolve this issue in the Appellant’s favour.

For the Respondent, it is submitted that Suit No. BOHC/MG/CV/53/15 and Suit No. BOHC/MG/CV/48/17 even though instituted over same subject matter, the parties and issues were different, and therefore there is no abuse of Court process. Counsel relies on the case of Saka vs. Adeboiye (2010) ALL FWLR (Pt. 549) 1156.

Let me adopt the definition of abuse of Court process as given in the case of Ahmed Saka vs. Mr. Pelumi Adeboiye & Anor (2009) LPELR-4920 (CA) where Bage, JCA (as he then was) defined what constitutes abuse of Court process thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“On the meaning and connotation of abuse of Court process, this Court in the case of Pam V. A.N.P.P. (2008) 4 NWLR (pt. 1077) 219 at 231 Ratio 16 provides thus:- Abuse of Court process consist of the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice, such as instituting actions between the same parties simultaneously in different Courts even though on different grounds. An abuse of Court process may lie in both a proper and improper use of judicial process in litigation.

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 matter between the same parties even where there exists a right to institute an action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right parse. See :- Shell Trustees (Nig.) Ltd. V.

Imani & Sons Ltd (2000) 6 NWLR (Pt. 662) 139 at 660; Okorodudu V. Okorodudu (1977) 3 SC 21; Oyebola V. Esso West Africa Inc. (1966) 2 SCNLR 35; Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156.” Per BAGE, JCA (Pp. 20 -21, paras. D – E).

Now, what was in issue in Suit No. BOHC/MG/CV/53/15 was the claim of the Appellant that having paid in full the purchase price for the house, “B151” the defendants therein refused to deliver the title deeds to him. Therefore, in that suit he prayed for an order of specific performance to compel them to execute the deed of assignment in his favour. Whereas, in Suit No. BOHC/MG/CV/48/17 the Respondent herein who was the claimant prayed for a declaration that he and the Appellant are co-owners of the said house, amongst other ancillary reliefs. In Suit No.

BOHC/MG/CV/53/15, the parties were the Appellant as claimant and Ministry of Housing and Rural Electrification, Borno State; and Attorney – General, Borno State as defendants. The Appellant, who was the claimant, did not deem it necessary to join the instant Respondent as defendant since his claim was clearly against the two aforesaid defendants who refused to disclose to him the person to whom they gave the deed of assignment made between them and the Appellant (who was the claimant in the said suit). On the other hand, the parties in Suit No.

BOHC/MG/CV/48/17 are the Respondent (as claimant) and Appellant (as defendant).

It is therefore without doubt that Suit No. BOHC/MG/CV/48/17 cannot constitute abuse of Court process in relation to Suit No. BOHC/MG/CV/53/15; I hold. This issue is therefore resolved in favour of the Respondent and against the Appellant.

Issue three and four are tied together, and are to be considered together. The said issues three and four are:- Issue Three Whether by virtue of glaring evidence of defendant/appellant and exhibit GA3, ST1 to ST10, admitted in evidence before the lower Court the appellant has exclusively proved his title over house No. B121 on the balance of probability? Issue Four Whether the lower Court was right in holding that respondent has proved his case and is entitled to jointly share house No. B121 Ibrahim Taiwo Housing Estate Maiduguri, with the appellant.

​Issues three and four in effect call upon this Court to determine whether upon consideration of the evidence adduced, the Respondent proved his case to be entitled to the Judgment of the trial Court which declared him joint owner of house No. “B121” with the Appellant.

In my consideration of the first plank of issue one, I resolved that the Ministry of Housing and Rural Electrification, Borno State; and Attorney General Borno State are necessary parties without whose presence the Respondent’s claim cannot exhaustively, effectively, finally and fairly be determined. This is because, there are averments in the Respondent’s amended statement of claim and corresponding averments in the Appellant’s amended statement of defence which can only be resolved with inputs by the aforesaid necessary parties.

Therefore, without these parties being joined and heard on the averments in which their roles in the whole transaction leading to the Respondent’s action are mentioned, issues three and four cannot be justly, effectively and finally be decided.

​In sum, it is therefore my firm view that notwithstanding, the resolution of the second plank of issue one, and issue two in favour of the Respondent and against the Appellant, the resolution of the first plank of issue one in favour of the Appellant and against the Respondent determines this appeal in favour of the Appellant. In other words, the appeal succeeds on the first plank of issue one.

Accordingly, the Judgment of the lower Court delivered on 23/04/2019 by Hon. Justice B. Karumi in Suit No. BOHC/MG/CV/48/2017 is hereby set aside. It is hereby consequently ordered that the Ministry of Housing and Rural Electrification Borno State, and Attorney – General Borno State who were at the inception of the suit joined as 2nd and 3rd defendants respectively but subsequently struckout be restored as the 2nd and 3rd defendants respectively. It is further ordered that the matter is remitted to the lower Court for retrial before another Judge.

Costs is assessed at N150,000 in favour of the Appellant against the Respondent.

JUMMAI HANNATU SANKEY, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother, Abundaga, J.C.A. just delivered.

​I agree entirely with the reasoning and conclusion that the Appeal is meritorious, the necessary parties to the action having been excluded from the suit.

Therefore, I too allow the Appeal. I endorse the order of retrial made by my learned brother and I abide by the order as to costs made therein.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother ABUNDAGA JCA. I am in agreement with his reasoning and final conclusion. This appeal succeeds in part and is allowed. I abide by all the consequential orders contained in the lead judgment, especially that as to retrial.

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division or Court below or lower Court, Coram: Uwani Musa Abba Aji JCA (as he then was), Oluduton Adebola Adefope-Okojie and Amina Audi Wambai JJCA, delivered on the 16th day of March, 2018 wherein the appeal of the respondents was allowed and the judgment of the trial High Court per D.H. Khobo J., was set aside and the appellant therein was declared the title holder of the property subject of this appeal.

FACTS The case of the Appellant as plaintiff before the trial Court is that the title and interest in and over the large expanse of farmland situated and lying at Rugan-Guza, Rigachikun in Igabi Local Government Area of Kaduna State measuring 138.803 hectares (343.00) Acres) covered by Certificate of Occupancy No. 15925 dated 9/6/2005 (Exhibit 4) and more particularly delineated in the approved survey plan no.

KD.15925 deposited in the office of the Surveyor General, Ministry of Lands, Surveys and Country Planning, Kaduna State was originally vested in one Abubakar Haruna (now deceased) who acquired same from the customary owners of same. The said Abubakar Haruna in turn sold to the Appellant as evidenced by the Deed of Assignment executed between the said Abubakar Haruna and the Appellant (Exhibit 1) for a consideration of N700,000.00 which was duly perfected by the Appellant.

The Respondents and their subordinates prevented the Appellant from the legitimate exercise of the right of ownership and possession of the said farmland by way of interfering with the Appellant’s right to access to the farmland with a view to carrying out farming activities thereon.

The Appellant tendered Exhibits 1-9 while the Respondents tendered Exhibits 10-24.

The Appellant testified as PW1, One Aminu Tanimu and Idris Adamu as PW2 and PW3 respectively, Mallam Danladi Wada as PW4 and Elias Kantiok (a subpoenaed witness from the Survey Division of the Ministry of Lands, Surveys and Country Planning, Kaduna State) testified as PW5.

On the part of the Respondents, their case was predicated on the fact that the 1st Respondent has been in peaceful and undisturbed possession of the land in dispute since 1962. ​ The Respondents protested that the said land was allocated to the Ministry of Defence for the 1st Respondent’s use by the then Government of Northern Nigeria through the Northern Nigeria Council Memorandum of 20th – 22nd October, 1962.

It was also their case that at the time the land was allocated to the Ministry of Defence, it was virgin forest with no one farming thereon or in occupation. The Respondents contested that the land and the ownership or interest of the Ministry of Defence has never been divested at any point in time or transferred to any person.

That by the grant of the certificate of occupancy to the appellant, the Ministry of Lands, Kaduna State shut its eyes to the existence of the Northern Nigeria Council Memorandum allocating the land to the respondents.

On the 12th day of October, 2021, date of hearing, learned counsel for the appellant, A, Bashar Esq., adopted the brief of argument filed on 6/2/2020 in which he donated a single issue, viz: Whether on the state of pleadings and the evidence led by both parties, the learned justices of the Court of Appeal were justified when they held that the appellant failed to prove a valid root of title to the land in dispute?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel for the respondents, O.C. Ali Esq., adopted the brief of argument filed on 24/11/2020 and utilized the sole issue formulated by the appellant.

I shall use the said issue in the determination of this appeal.

SINGLE ISSUE Whether on the state of the pleadings and the evidence led by both parties, the learned Justices of the Court of Appeal were justified when they held that the appellant failed to prove a valid root of title to the land in dispute.

Referring to the pleadings, learned counsel for the appellant contended that the appellant chose one of the five ways of proving title/ownership of land which is by the production of documents of title which had been duly registered as required by law. He cited Agboola v. UBA PLC (2011) 11 NWLR (pt. 1258) 375 at 400-401 and Ajiboye v Ishola (2006) 13 NWLR (pt. 998) 628 at 652 etc.

That the appellant having traced and established his root of title to his vendor vide Exhibit 1, it was wrong of the Court below to inquire into the title of his predecessor in title and the customary ownership through whom the said predecessor acquired his title to the land in dispute. He referred to Aiyeola v Pedro (2014) 14 NWLR (pt. 1424) 409 at 447.

That the respondents never challenged the validity of the appellant’s predecessor’s root of title at the trial Court.

For the appellant, it was further submitted that the gravamen of the complaint of the respondents at the Court below revolved around the contention of exercising long possession over the land in dispute by virtue of the Northern Nigeria Council Memorandum of 20th – 22nd October, 1962 which was not tendered at the trial Court. That it was wrong for the Court below to raise the issue of traditional evidence suo motu and resolve the issue upon it without the parties addressing it on the question. He referred to Wagbatsoma v FRN (2018) 8 NWLR (pt. 1621) 199 at 128.

Learned counsel for the appellant stated that a judgment obtained against the principle of fair hearing such as the present is a nullity. He cited Kotoye v. Saraki (1994) 7 NWLR (pt. 357) p. 414 etc.

That the finding of the lower Court on possession by the respondents was perverse as it was outside the record. He cited Onwuka Vs. Ononuju (2009) 11 NWLR (pt. 1157) 174 at 201 – 202 etc. Responding, learned counsel for the respondents contended that the matter of traditional evidence was pleaded by the appellant and he referred to the said claim and so he cannot change at this point to denounce that mode of proof. He cited Kode v. Yusuf (2001) 4 NWLR (pt. 703) 393 at 409 etc.

The divergence of the parties have been shown in the summary depicting their positions above. In a nutshell, the appellant contends that he relied on documentary evidence to prove his case and not on traditional history/evidence and that the contrary findings of the trial Court had occasioned a miscarriage of justice. This stance the respondents dispute relying on the pleadings of the appellant and the evidence led.

A recourse to the pleadings would throw light on what the true position in para 4 of the Statement of Claim of the appellant as plaintiff thus: “4.

The plaintiff pleads that the title, right and interest in and over the large expanse of farmland situate and lying at Rugan, Guza-Rigachikun in Igabi Local Government Area measuring 138-803 Hectares (34300 Acres) covered by Certificate of Occupancy No. 15, 925 dated 9/6/2005 registered as No.91 at P.91 in Volume 118 of the Kaduna State Lands Registry Kaduna State (hereinafter called the farmland) issued in favour of the plaintiff was originally vested in one Abubakar Haruna (now deceased) who acquired same from the customary owners of the farmland that have been cultivating same for a long period of time” (Underlining is supplied for emphasis) Para 7, page 5 of the record of appeal: “The plaintiff pleads that the customary owners of the land where the farmland is situate are also deemed grantees or holders of a right of occupancy.” (Underlining is supplied for emphasis) Para 8, pages 5-6 of the record of appeal: “The plaintiff states that Mallam Abubakar Haruna who acquired the farmland from the customary owners and cultivating same for a long period of time sold the farmland to the plaintiff for a consideration of N700,000.00 as evidenced by the Deed of Assignment executed between the plaintiff and the said Mallam Abubakar Haruna which properly describes the farmland in paragraph (1) of the recital but wrongly described in the schedule thereto duly stamped and registered as No.

KDR 129 at page 129 in Volume 126 of the Kaduna State Lands Registry Kaduna. The Deed of Assignment is hereby pleaded.” (Underlining is supplied for emphasis). Para 11, page 6 of the record of appeal: “The Plaintiff posits that after full compliance with all the requirements leading to the issuance and execution of a certificate of Certificate of Occupancy, the Governor of Kaduna State granted and issued the plaintiff with a certificate of occupancy No. KD.15925 dated 9/6/2005 registered as No. KD15925 is hereby pleaded.” (Underlining is supplied for emphasis)

It is instructive to state that the Appellant’s endorsement on Writ of Summons shows that he largely depended on traditional evidence to prove his claims. For ease of reference: “…and more particularly delineated in the approved plan no. KD. 15925 deposited in the office of the Surveys and Country Planning, Kaduna-South, Kaduna State was originally vested in one Abubakar Haruna (now deceased) who acquired same from the customary owners of same.”

It is evident that the appellant had opted for the traditional evidence as the pleadings he deposed to have shown and so he cannot later change from the averments in the pleadings to suit the purpose he wants to project.

Clearly, the appellant had depended on two modes of proving title to land which are, viz: (a) Traditional history/evidence; and (b) Documentary evidence.

For the traditional history/evidence, see the underlined words under paragraphs 4, 7, and 8 of the statement of claim reproduced above. For the documentary evidence, see the underlined words in paragraphs 8 and 11 of the statement of claim reproduced above.

Indeed a party is not forbidden from choosing one or more modes/ways of proving title to land, it is obligatory on him to prove whatever way chosen by him upon the preponderance of evidence/balance of probability without leaving the Court in any doubt. I rely on KODE v. YUSUF (2001) 4 NWLR (Pt. 703) 393 at 409 paras F-G S/C, EWO v. ANI (2004) 3 NWLR (Pt. 861) 611 at 638 Paras B-C and 639 paras B-D and MORENIKEJI v. ADEGBOSIN (2003) 8 NWLR (Pt. 823) 612 at 657-658 paras G-E S/C.

It is therefore wrong for the Appellant to argue as he did in his brief of argument that, “It was therefore wrong for the justices of the Court below to place the burden of establishing the root of title of the customary owners of the land in dispute on the Appellant and hold that the appellant failed to prove a valid root of title to the land in dispute”. The cases of AGBOOLA v. U.B.A. PLC (2011) 11 NWLR (Pt.1258) 375 at 400-401, H-C, AJIBOYE v. ISHOLA (2006) 13 NWLR (Pt. 998) 628 at 652 A-F and CHABASAYA v.

ANWASI (2010) 10 NWLR (Pt. 1201) 163 AT 188-189 cited by the Appellant at pages 9-11 of his brief of argument are not useful to his case since they rather support the stance of the respondents.

It is now well settled in law that a plaintiff has the duty in an action for declaration of title to land to adduce sufficient evidence and credible evidence to establish the mode of acquisition of his title and the law is that, the said plaintiff must succeed on the strength of his own case and not on the weakness of the defence (if any) although the plaintiff may take advantage of the defendants’ evidence where it supports his case after he might have proved his case as required by law.

The Plaintiff’s claim is for title in respect of a large expanse of farmland situated and lying at Rugan Guzu-Rigachikum in Igabi Local Government Area of Kaduna State measuring 138.803 Hectares (343.00 Acres) covered by Certificate of Occupancy No. 15925, dated 9/6/2005 registered as No. 91 at page 91, which was admitted in evidence as Exhibit 4. In the case of ALHAJI J. AROMIRE & 2 ORS v. J.J.

AWOYEMI (1992) 2 S.C. 1 at 11, this Court held that: “The learned trial judge rejected the defendant’s case and passed severe strictures on the defendant’s witnesses and their conduct but with respect, a consideration of the defendant’s case and the weakness of it did not arise until the plaintiff had led evidence showing, prima facie, that she had a title to the land. She had failed to do this and it is inconceivable that she should be allowed to succeed on her claims when, as indeed it is, the defendant is in possession and maintains that he is entitled to so remain.

If it be alleged that someone in possession of land is a trespasser the person so alleging had the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party. Such is the case here and we are of the view that the plaintiff’s case had failed and it should have been dismissed.”

Furthermore, it should be noted that the reliefs (a) and (b) of the Respondents are declaratory in nature. It is trite law that declaratory reliefs are not granted as a matter of course, the claimant (Appellant in this case) must satisfy the Court on balance of probability to be entitled to same.

I shall call in aid, a judicial authority on the need of root of title which I consider germane at this stage. In the case of LAWAL VS. OLUFOWOBI (1996) 10 NWLR (PT. 477) 177 at 188 A-B, this Court held as follows:- “The root of title, in cases like the one now on appeal, once pleaded as raison d’etre for the presence of the person pleading, must be proved to the satisfaction of the Court. Because if the root of title depended upon is defective or remains unproved, the possession claimed will be illusory and it may in the end be an act of trespass.

The Appellants failed to prove their root of title, their traditional history on the land having failed to hold any water. Thus if the pleaded root of title is not established by evidence as is the case here it is futile exercise to go into the issue of possession or acts of ownership. Are v. Ipaye (1990) 2 NWLR (Pt 132) 298, 301, Fashoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263, Balogun v. Akanji (1988) 1 NWLR (pt.70) 301 and Idundun v. Okumagba (1976) 9-10 SC 277.”

The appellant at this late stage veering off course from his pleadings to contend that he relied solely on documentary evidence is understandable since he is clutching at whatever he can see available to save his case having failed to discharge the burden placed on him. See the cases of VINCENT I. BELLO v. MAGNUS A. EWEKA (1989)1 SC 63 at 71 (RE-PRINT); AGBANA v. OWA (2004)13 NWLR (Pt.889) 1 at 17.

It is cardinal and a well settled principle of law that the burden of proof in civil matters is generally on the plaintiff/claimant (the Appellant herein).

It is my humble view that the burden of proof on the Appellant in establishing declaratory reliefs are not granted even on the admission by the defendants (Respondents herein). In this instant appeal, the Appellant failed to discharge this burden on him in the lower Court and it is not difficult to so hold. ​It needs be brought to the fore that declaratory reliefs are not granted based on the lack of credible evidence by the defence but on the convincing, satisfactory and credible evidence by the claimant.

Assuming that the Respondents’ evidence were not satisfactory enough, that is not a pointer that the declarative reliefs should be granted.

By paragraph 4 of the Appellant’s statement of claim at pages 13-14 of the record, the Appellant avers that:- “That the title; right and interest in and over the large expanse of farmland situated and lying at Rugan, Guza-Ragachikun in Igabi Local Government Area, Measuring 138.803 Hectares (343.00 Acres) covered by Certificate of Occupancy No. 15925 dated 9/6/2006 registered as No. 91 at page 91 in Volume 118 of the Kaduna State Lands Registry Kaduna State (hereinafter called the farmland) issued in my favour was originally vested in one Abubakar Haruna (now deceased) who acquired same from the customary owners of the farmland that have been cultivating same for a long period of time.”

From the above paragraph 4, it is clear that the Appellant relied on Certificate of Occupancy No.15925 dated 9/6/2005 (Exhibit 4) and purchase of the land in dispute from one Abubakar Haruna vide a Deed of Assignment (Exhibit 1). The mere tendering of the Certificate of Occupancy Exhibit 4, does not automatically prove that the land in dispute belongs to the Appellant, without going further to establish the title of the alleged customary owner of the land in dispute.

This is because it was the Deed of Assignment executed by one Abubakar Haruna that led to the issuance of the Certificate of Occupancy (Exhibit 4). Abubakar Haruna allegedly acquired his title to the land by, purchasing same from the customary owner, but no evidence before the trial Court on how the purported customary owner became the owner of the land before transferring same to Abubakar Haruna or to the Appellant. In the case of PRINCE NGENE v.

CHIKE IGBO & ANOR (2000) 2 SCNJ 136, (2000) 4 NWLR (pt.651) 131 at 149 paras B-D, this Court held that production of registered documents does not automatically prove that the land sought to be conveyed therein belongs to the party who tendered it. This Court further held as follows: “It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how that person or family derived his or its title to such land.

Accordingly, the plaintiff, to succeed in his claim for declaration of title to land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet, meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such and particularly whereas in the present case, the defendant did not concede the ownership of the land by the plaintiff’s grantors but expressly denied the same.

See Mogaji & Ors v. Cadbury Fry (Export) Ltd (1985) 2 NWLR (pt. 7) 393. In the present case, the root of title of Ugwu Mba was neither pleaded nor did the plaintiff attempt to establish the said root of title. This without doubt, is fatal to the plaintiff’s claim in declaration of title to land in dispute…” See also the case of ARIYO v.

ADEWUSI (2010) 15 NWLR (PT. 1215) 78 AT 91 which followed the same principle thus:- “It is trite that the mere tendering of an instrument to land, such as a Deed of Conveyance or a Certificate of Statutory or Customary Right of Occupancy in Court does not automatically prove that the land therein purportedly conveyed, granted or transferred by the instrument becomes the property of the grantee.” See also Auta v. Ibe (2003) 13 NWLR (pt. 837) 247 at 265 and Aminu v. Ogunyebi (2004) 10 NWLR (pt. 882) 457 at 481.

It is instructive that the Respondents pleaded in their joint statement of defence that the 1st Respondent had been in peaceful and undisturbed possession of the land in dispute since 1962 and that he 1st Respondent had never been divested of the ownership of the land by anybody at any point in time till date. For avoidance of doubt, the Respondents aver in paragraphs 3, 5, 6, 7, 8, 9 and 10 of their statement of defence at pages 92-94 of the record as follows:- “3.

In furtherance of paragraph 2 above, the defendants aver that he 1st defendant has been in possession of the piece or parcel of land since 1962, the said piece or parcel of land was allocated to Ministry of Defence for the use of the 1st defendant by the then Government of Northern Nigeria vide the Northern Nigeria Council Memorandum of 20th- 22nd October, 1962. The defendants shall rely on the Northern Nigeria Executive Memorandum of 20th – 22nd October, 1962 during the trial of this case. 5.

The defendants admit paragraph 6 of the Plaintiff’s statement of claim to the extent that all lands comprised within the present Kaduna State and its environs including the piece or parcel of land being claimed by the plaintiff were under the management and control of the Government of the then Northern region of Nigeria. 6. The defendants in response to paragraphs 7 and 8 of the plaintiff’s statement of claim aver that as at the time the piece of the land was allocated to the Ministry of Defence, the whole land was a virgin forest and no one was farming on the land or was in occupation. 7.

In furtherance of paragraph 5 above, the defendants aver that since 1962 when the land was allocated to Ministry of Defence for use of 1st Defendant by Government of the then Northern Region of Nigeria, the ownership and interest of Ministry of Defence had never at any point in time been divested or transferred to any other person. 8.

The defendants in addition to paragraphs 5 and 6 above aver that Mallam Abubakar Haruna who purportedly sold a portion of defendants’ land to the plaintiff is a stranger to the land and had no legal ownership or interest in the land and had nothing to sell and transfer to the plaintiff. 9. The defendants aver further that since the land was allocated to the Ministry of Defence in 1962, the 1st Defendant had been in exclusive occupation and its right of occupancy had never been revoked by any authority whatsoever. 10.

The defendants admit paragraphs 9 and 10 of the plaintiff’s statement of claim to the extent only that as at the material time Kaduna State Ministry of Lands Survey and Country Planning accepted the payment of the prescribed fees for payment for the transfer of title in the land to the plaintiff, it either closed its eye to the existence of the Northern Nigeria Council Memorandum of 20th – 22nd October, 1962 allocating the land to Ministry of Defence or was not aware of the existence of same.”

It should be noted that the Appellant through his witness PW2 who testified to being 48 years of age also testified that he was born to meet the Air Force base on the land, therefore, reinforcing the claim of ownership through long possession by the respondents. See the evidence of PW2 under cross-examination on the 4th of December, 2014 at page 233 of the records.

Therefore, as at the time Exhibits 1 and 4 were executed, issued or carried out, there was in existence, a valid and existing title/interest of the Respondents in and over the land in dispute and the title/interest had not been cancelled, set aside or invalidated by any genuine instrument.

It is not correct from the evidence that PW1-PW5 proffered evidence which established a valid title to the land in favour of the appellant because neither the appellant’s pleading nor his witnesses established how the claimed customary owner came across the land in dispute since the said customary owner had not been proved and so Abubakar Haruna cannot be said to have acquired good title or any title to the land endowing him the position to transfer any title or interest to the appellant, as he cannot give what he does not own. This is expressed in a latin maxim: Nemo dat Quod Non Habet.

I refer to the case of IBRAHIM v. OSUNDE (2009) 6 NWLR (PT.1137) 382 at 404 S.C, OLUBODUN v. LAWAL (2008) 17 NWLR (PT. 1115) 1 at 36 – 37 and AKINTERINWA v. OLADUNJOYE (2000) 6 NWLR (Pt. 659) 92 at 105 Paras A-B & 115.

PW2 and PW3 only gave evidence to the effect that they inherited the land in dispute from their parents through traditional inheritance and that it was one Mallam Abubakar Haruna that bought the land from the parents of PW2 & PW3’s parents. The PW2 and PW3 never told the Court how their parents became the customary owners of the said land, therefore, the Appellant has not satisfied the requirements laid down by this Court in the case of Ibrahim v. Osunde (supra). The Appellant’s claims must therefore fail in its entirety as held by the lower Court. I also refer to MOGAJI v.

CADBURY (NIG) LTD (1985) 2 NWLR (Pt.7) 393.

In JOLAYEMI v. ALAOYE (2004) 12 NWLR (Pt.887) 322 at 348, this Court held that a defendant (the Respondents in this case) need not prove anything if the Plaintiff (Appellant in this case) has not succeeded in establishing his case, at least, prima facie, in order that the necessity of the defendant to confront the case so made may arise. See also AGBANA v. OWA (2004) 13 NWLR (Pt. 889) 1 at 17 where this Court held that where the Plaintiff fails to prove his case as required by the law, it shall be dismissed.

The case of AIYEOLA v. PEDRO (2014) 14 NWLR (Pt. 1424) 409 at 422 cited by the Appellant at page 12 of his brief of argument is against the Appellant’s position because there is an exception spelt out in the portion quoted by the Appellant which says: “…Unless the vendor’s title has become an issue in the case …”

In the case at hand, the vendor’s title (Abubakar Haruna) had become an issue and the appellant unable to explain the origin of the title of the said vendor.

Paragraph 28 of the respondent’s statement of defence is a notice to the appellant that he had failed to establish his root of title and so not entitled to the reliefs he sought. It is to be restated that whether the appellant’s root of title to the land in dispute is challenged by the respondents or not, the appellant as plaintiff still carries the burden of proving his root of title on the preponderance of evidence and in this instance the appellant has failed.

Again to be said is that, it is settled in law that a party can rely on the pleading of his adversary, lead evidence on same and advance arguments in support of his own case and therefore, the respondents need not specifically plead that they will challenge the case of the appellant in Court. I place reliance on Dokubo v. Omoni (1999) 8 NWLR (pt.616) 647 at 664 – 665 and Okhuarobo v. Aigbe (2002) 3 SCNJ 109.

It is glaring that nothing has been proffered by the appellant upon which this Court would interfere with the findings and conclusion of the Court below, which rendered its decision borne out of the record, the evidence led and the law. I resolve the issue against the appellant and in favour of the respondents.

The appeal lacks merit and I dismiss it. I award the sum of N500,000 (Five Hundred Thousand Naira) to the respondents, to be paid by the appellant. Appeal Dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother, Mary Ukaego Peter-Odili, JSC, just delivered I agree with the reasoning and conclusion that the appeal lacks merit and deserves to be dismissed.

The appellant sought declaratory reliefs at the trial Court. The burden was therefore on him to satisfy the Court that he was entitled to those reliefs. He must succeed on the strength of his own case and not on the weakness of the defence, if any. Furthermore, he would not be entitled to a declaration in his favour even upon admission by the defendant or in default of defence.

In Bello Vs Eweka (1981) 1 SC 101 @ 102, this Court held, per Obaseki, JSC: “…where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleading of the defendant that he is entitled to the declaration. ” The reason is not farfetched. The grant of a declaratory relief is discretionary. The party seeking the relief must therefore prove his claims to the satisfaction of the Court See Dumez Nig.

Ltd Vs Nwakhoba & Ors (2008) LPELR – 965 (SC) @ 39 A – D, Kwajaffa & Ors. Vs B.O.N. Ltd. (2004) 13 NWLR (Pt. 889)146 and Emenike Vs P.D.P. (2012) 12 NWLR (Pt. 1315) 556.

Moreover, in the instant case, having pleaded both traditional and documentary roots of title, the onus was on him to prove same. As rightly stated in the lead judgment, possession of a Certificate of Occupancy constitutes prima facie but not conclusive proof of title to the land to which it relates. It is a presumption which is rebuttable. See Otukpo vs John & Anor (2012) LPELR – 25053 (SC) @ 18F, (2012) 7 NWLR (Pt. 1299) 357, Registered Trustees Mission Vs Olowoleni (1990) 6 NWLR (Pt. 158) 514 and Adole vs Gwar (2008) LPELR – 189(SC) @ 17 D-E.

The evidence of the appellant’s witnesses as to how their forefathers, who they did not name, acquired the land was vague and unreliable. In Otukpo Vs John (supra) @ 381 D - E, this Court held thus: “In order to succeed in a claim to title, a party who held a Certificate of Occupancy will need to show his root of title, that is through his vendor and that the vendor or seller has to show valid title to the land over which the purchaser secured his Certificate of Occupancy.

This is because the Certificate of Occupancy can only be valid if the root of title originates from the customary owners of the property.”

In the instant case, the appellant failed woefully in this regard. The title of his predecessor was in issue in light of the cogent and compelling evidence led by the respondents showing that the land was allocated to the Ministry of Defence for the use of the 1st Respondent by the then Government of Northern Nigeria as far back as 1962 and that it had been in uninterrupted possession thereof since then.

In the circumstances, I am unable to fault the sound reasoning of the Court below. I therefore join my learned brother in the lead judgment in dismissing this appeal for being devoid of merit. I affirm the judgment of the Court below and abide by the award of costs. Appeal dismissed.

EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered by my learned brother, MARY UKAEGO PETER-ODILI, JSC wherein she generously considered the sole issue argued and dismissed it on the merits. Much as I agree that the appeal, in substance, lacks merits, it is my firm view as well that the appeal, recklessly incompetent does not deserve being considered for its merits.

The sole issue formulated by the Appellant for the determination of the appeal, that is – Whether, on the scale of pleadings and evidence led by both parties, the learned Justices of the Court of Appeal were justified when they held that the Appellant failed to prove a valid root of title to the land in dispute? (Emphasis supplied) seeks this Court, the Apex Court, to re-evaluate the facts on which the lower Court predicated the decision appealed. The sole issue is the summary of the four (4) grounds of appeal on which this further appeal predicates.

The appeal brought on the Notice of Appeal filed on 18th April, 2018 (33 days from the decision appealed was delivered on 16th March, 2018), was brought as of right.

This appeal, raising only issue of pure fact, was brought in contravention of Section 233 (2) & (3) of the Constitution requiring that leave, first sought and obtained, is the sine qua non for bringing an appeal to this Court on ground (s) of appeal raising issues of either pure facts or mixed law and fact. This appeal (as the 4 grounds of appeal and the sole issue for determination of the appeal eloquently attest to) raises only an issue of pure facts.

It is clearly an abuse of the due process of this Court, and therefore deserves to be, and is hereby dismissed for abuse of process; the incompetence being a deliberate affront to the mandatory provisions of the Constitution.

A process of Court filed, which has no backing of the law is regarded as an abuse of Court process. See JIMOH v. STARCO NIG. LTD (1998) 7 NWLR (pt. 558) 522 (CA) at 535 – 536, AKINTUNDE v. OJO (2002) 4 NWLR (pt. 757) 284 (CA) at 302. In SARAKI v.

KOTOYE (1992) 9 NWLR (PT. 264) 156 (SC), this Court per Karibi-Whyte, JSC restated the law on abuse of process to include where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness and that the abuse lies, inter alia in the inconvenience the other party (in this case the respondents) had been put and/or made to defend the process adjudged recklessly incompetent. Abuse is a fundamental vice and it is always punished with a dismissal order.

Appeal dismissed. All the orders made in the lead judgment, including orders as to costs, are hereby endorsed and adopted by me.

MOHAMMED LAWAL GARBA, J.S.C.: After reading a draft of the lead judgment written by my learned brother, Hon. Justice M. U. Peter-Odili, JSC in this appeal, I agree that the Court below is right that the Appellant indeed, failed to prove the root of title of the vendor who sold the land in dispute to him as required by the law and so the appeal is wanting in merit.

For the elaborate reasons set out in the lead judgment, which I adopt, the appeal is dismissed by me too in the terms set out therein.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I have read before now, the draft of the judgment just delivered by my learned brother, the Hon. Justice Mary Ukaego Peter-Odili, JSC. I agree with the reasoning and conclusion reached therein, to the effect that the instant appeal lacks merits. ​ Hence, having had the privilege of adopting the said reasoning and conclusion as mine, I too hereby dismiss the appeal and abide by the consequential orders made.

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Ibadan Division or Court below or lower Court, Coram: M.D. Muhammad, J.I. Okoro JJCA (as they then were) and A.P.E Awala JCA.

The Court below allowed the appeal of the respondents herein by its decision of 18/04/2007 and it is against that judgment that the appellant has come to the Supreme Court.

BACKGROUND FACTS By its Writ of Summons filed on the 17th March, 1998, the Plaintiff/appellant claimed as follows:- (1) A declaration that the Plaintiff’s i.e Akinsanya Akanji Section of Ajayi Family of Jagun Sodeke Compound, Ilora, is entitled to a right of occupancy over all that land known as Igbo Ede lyin and being along Ilora-ljaye Road, Ilora in Afijo Local Government Area of Oyo State. (2) An order setting aside the grant to the 1st Defendant by the 3rd Defendant through the 4th Defendant of Certificate of Occupancy No.22/22/2378 dated 26/5/81 and No. 30/30/3150 dated 26/10/95 of Land Registry Ibadan over part of the Plaintiff’s Family land at Igbo-Ede which were obtained by the 1st Defendant without the knowledge, consent or authority of the Plaintiff’s Family. (3) An order setting the sale and/or conveyance of part of the land at Igbo-Ede to the 2nd Defendant, the said sale and/or conveyance having been made by the 1st Defendant without the knowledge, consent or authority of the Plaintiff’s Family. (4) Injunction restraining the 1st and 2nd Defendants whether by themselves, their agents, servant, privies or otherwise howsoever called from entering into or committing further acts of trespass on the Plaintiff’s Land at Igbo-Ede. (5) The sum of N40,000.00 being damages for trespass committed by the 1st and 2nd Defendant, their agents, servant, privies or otherwise howsoever called when they entered into the Plaintiff’s farmland at Igbo-Ede and destroyed the Plaintiff’s palm trees and other economic plants and substance on the said land and commenced or caused to be commenced building operations on the said farm land.

The Statement of Claim was also filed together with the Writ of Summons. The Claim is contained in Pages 2-7 of the records.

After filing the Statement of Claim, and service was effected on the Defendants, the Defendants/respondents’ entered appearance and subsequently filed an application seeking to strike out the suit on the grounds that it constituted an abuse of the process of Court.

​The grouse of the appellant was that Suit No. HOY/7/97 which had been terminated was the same as this suit and as such constituted an abuse of the process of Court. The learned trial judge in a ruling dismissed the application on the grounds that the previous Suit No. HOY/7/1997 which was dismissed in limine could not form the basis for res-judicata to prevent the filing of Suit HOY/6/1998.

At page 44 of the record, the Learned Trial Judge held as follows: “l am persuaded that the previous suit was dismissed on the ground that the Plaintiff instituted the action on behalf of Ajayi Family instead of Akinsanya Akanji Section of Ajayi Family. This was a procedural defect and the case itself was dismissed in limine and not on merit. I therefore do not consider the institution of the present action as either vexatious or an abuse of the process of Court.”

It is against that ruling that the respondents herein appealed to the Court of Appeal. In the Court of Appeal, the Learned Justices in considering the appeal, suo-motu raised the effects of Sections 287 and 270 of the 1999 Constitution, decided on it without affording the parties an opportunity to address on the point.

The justices did not consider the issue in the appeal which was the effect of a dismissal not on the merit. The argument before the Court of Appeal was that since No. HOY/7/1997 was dismissed on a preliminary point of law, such dismissal could not amount to a dismissal on the merit barring filing of a subsequent action i.e HOY/6/1998.

The appellant felt that the Court of Appeal in this instance failed to follow the Supreme Court authorities of KOSSEN V SAVANNAH BANK (1995) 12 S.C.N.J 29 AT 40 AND OBASI BROTHERS v MBA SECURITIES (2005) ALL FWLR PT. 261 AT 232 which were brought to their notice to the effect that a dismissal not on the merit has the effect of a mere striking out.

It is against that decision of the Court of Appeal, that the appellant has decided to appeal to the Supreme Court. The notice of appeal is at pages 119 - 121 of the record. Leave to appeal on grounds other then law was obtained at the Court of Appeal on 19/6/2007 in compliance with Section 233(3) of the 1999 Constitution.

On the 9th day of March, 2021 date of hearing, Learned Senior Counsel for the appellant, Oladipo Olasore adopted the amended brief of argument filed on 10/12/2018 in which were nominated three issues for determination, viz:- (A) Whether the Court of Appeal was right in suo-motu raising and deciding the issue of Sections 270 and 287 of the 1999 Constitution without giving the parties the opportunity to address on the point. (B) Whether the Court of Appeal properly identified the main issue before it. (C) Whether the Court of Appeal was right in holding that the dismissal of Suit No.

HOY/7/1997 in limine constituted a bar to a subsequent action i.e HOY/6/1998. The appellant also filed an additional list of authorities.

Learned counsel for the 1st respondent, F.A. Folorunso Esq adopted the brief of argument filed on the 24/11/2010 and identified two issues for determination as follows:- (1) Whether reference by the Learned Justices of the Court of Appeal to Sections 270 and 287 of 1999 Constitution of the Federal Republic of Nigeria while arriving at their decision and judgment at the Lower Court amounts to raising a fresh issue which necessitates further addresses of counsel?

This issue is covered by Grounds 1, 2 and 3 of the Grounds of Appeal. (2) Whether institution of Suit HOY/6/1998 after dismissal of Suit HOY/7/1997 constitutes an abuse of Court Process?

The 2nd and 3rd respondents were absent though served with the hearing notices on 6/3/2021. They also did not file any briefs of argument. I shall, for ease of reference, utilise the three issues donated by the appellant.

ISSUE NO.1 Whether the Court of Appeal was right in suo motu raising and deciding the issue of Sections 270 and 287 of the 1999 Constitution without giving the parties the opportunity to address on the point. Learned Senior Counsel for the appellant submitted that the issue before the Court below was whether or not a suit dismissed in limine could form the basis of res-judicata so as to prevent the filing of a subsequent action. That the lower Court in resolving the issue went outside the issue raised and used its own issues on Sections 270 and 287 of the 1999 Constitution.

That the Court of Appeal did not allow any of the parties address it on the said Sections 270 and 287 of the 1999 Constitution as to whether or not a judgment is valid and binding until it is set aside. That the issue was not whether or not the judgment was binding but whether or not the judgment in HOY/6/97 could prevent the filing of a subsequent action HOY/6/98. The learned silk stated that the result of the failure to allow the appellant address on this point occasioned a miscarriage of justice. He cited Oshodi v Eyifunmi (2000) NWLR (pt.360) page 1273 at 1305.

Learned counsel for the 1st respondent contended that the issue of Sections 270 and 287 of the Constitution was an obiter dictum which does not have the status of a ratio decidendi. That nothing in Section 270 of the Constitution called for counsel’s addresses.

He went further to say for the 1st respondent that the Court as master of the Law and its Rules is bound to consider all issues based on facts and relevant law in reaching the justice in a matter before it. He cited Madam Helen Obulor & Ors v Linus Weso Oboro (2001) FWLR (pt.47) 1004 at 1007.

​For the 1st respondent, it was submitted that the consideration of the Constitution of the Federal Republic of Nigeria had not occasioned a miscarriage of justice and does not constitute a reason for the Supreme Court to reverse the judgment of the Court below. He referred to Chief Johnson Imah & Anor v Chief Ajowele Okogbe & Anor (1993) 12 SCNJ 57 at 77.

Learned counsel for the 1st respondent stated further that the failure of the Court to give an opportunity to the parties to address on a subject does not always occasion a substantial miscarriage of justice, as each case depends on its own merit. He relied onOladejo Adewuyi Ajuwon & Ors v Fadele Akanni & Ors (1993) 12 SCNJ 32 at 52.

The issue before the Court of Appeal was whether or not a suit dismissed in limine could form the basis of res judicata so as to prevent the filing of a subsequent action.

In resolving the issue, the Court below on its own motion and without calling on the parties to address on it, raised the provisions of Sections 270 and 287 of the 1999 Constitution and proceeded to hold thus:- “The point that emerges from a community reading of clear and unambiguous words of the foregoing statutory provisions, and it must be emphasised, is that a subsisting judgment of a Court of competent jurisdiction remains valid and binding, even where the person it affects or the Court it is waved at believes that the judgment is void, until that judgment is set-aside by a Court of competent jurisdiction.

In the instant case, the lower Court decided to deviate from the clear decision of a competent Court that had “dismissed” an action because the action rather than being so “dismissed” ought to have “been struck out”. The lower Court should have been guided by what the decision in suit HOY/7/97 actually was in relation to the matter before it, rather than what the decision ought to have been. Having acted otherwise, it got derailed and its decision must be said to be wrong. The Court’s unqualified obligation is to enforce the judgment in suit HOY/ 7/97 as it is.”

The Sections 270 and 287 of the 1999 Constitution of the Federal Republic of Nigeria applied suo motu by the Court below without reference to the parties for address on the issues are hereby reproduced hereunder thus:- Section 270(1) “There shall be a High Court for each State of the Federation. The High Court of the State shall consist of- (a) A Chief Judge of the State, and (b) Such number of Judges of the High Court as may be prescribed by a Law of the House of Assembly of the State”.

Section 287(1) provides “The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and person, and by Courts with subordinate jurisdiction to that of the Supreme Court (2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate Jurisdiction to that of the Court of Appeal. (3) The decisions of the Federal High Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by jurisdiction to that of the Federal High Court, a High Court and those other Courts respectively”.

Learned counsel for the 1st respondent took the angle that the use of Sections 270 and 287 of the Constitution was in the course of an obiter dictum and thus, not having the status of a ratio decidendi. Also that a Court of law is not confined to only the legal authorities cited to it by counsel nor does the Court need to give counsel notice of the authorities or law it intends to use.

I agree that in keeping with Section 74(1) of the Evidence Act which provides thus:- “The Court shall take judicial notice of all laws and enactments and any subsidiary legislation made thereunder having the force of law now heretofore in force, or hereafter to be in force in any part of Nigeria”, that the Court would utilise any such law. See T.M. Orugbo & Anor v Bulana Una & Ors (2002) 9 SCNJ 12 at 32-33. This Court held that “A Court of law has no legal duty to confine itself only to authorities cited by the parties.

It can, in an effort to improve its judgment, rely on authorities not cited by the parties. Historical books or whatever books are authorities and the Koko District Customary Court was free to make use of them in its judgment. That per se is not breach of fair hearing, not even the twin rules of natural justice. The Court is under no duty to give notice to the parties that it intends to use a particular book. That will be a ridiculous situation.”

​I posit most humbly that the Lower Court (Court of Appeal) rightly found that the Appeal before it bordered on the import of Sections 270 and 287 of 1999 Constitution of Federal Republic of Nigeria (reproduced above) as well as Order 24 Rules (2) (4) of the High Court Civil Procedure Rules of Oyo State. That there is nothing in Section 270 that calls for counsel addresses and the Court has not said anything that amplifies the provision of the said section. Section 287 of the Constitution of Federal Republic of Nigeria 1999 makes provision for enforcement of Judgment.

Section 287 (3) makes provision for enforcement of Judgment of Federal and State High Courts. The section provides that such judgment shall be enforced by all authorities and persons and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court.

While the Court as master of the law and its Rules are bound to consider all issues based on facts and relevant law in reaching justice in a matter before it, it must not shut out the parties who initiated the process in the first place and owner of the cause or matter in making the decision which effect would impact on the parties. See Madam  Helen Obulor & Ors v Linus Weso Oboro (2001) FWLR (pt.47) 1004 at 1007.

It is because of the import of the application of Sections 270 and 287 of the 1999 Constitution (supra) on the decision of the Court of Appeal that the question that is thrown up is if a miscarriage of justice has not been occasioned. It is not in the simplistic dismissal by counsel for the 1st respondent that what the Court below said in regard to those sections was an obiter dictum and it would be so taken.

This is so since each case is decided on its own merit and a situation that would otherwise be taken as an obiter dictum, the circumstances surrounding it might place it in a pre-eminent position where it would occupy the status of a ratio decidendi. Again to be said is that it is not every error of law that is committed by a trial or appellate Court that justifies the reversal of a judgment. For a reversal to take place, the error must have occasioned a miscarriage of justice as it was material in the decision reached.

See Chief Johnson Imah & Anor v Chief Ajowele Okogbe & Ors (1993) 12 SCNJ 57 at 77; Oladejo Adewuyi Ajuwon & Ors v. Fadele Akanni & Ors (1993) 12 SCNJ 32 at 52.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the case at hand where the Court below did not allow any of the parties address it on Sections 270 and 287 of the 1999 Constitution as to whether or not a judgment is valid and binding until it is set aside, the issue really before the Court was not whether or not the judgment was binding, but rather whether or not the judgment in HOY/7/97 could prevent the filing of a subsequent action HOY/6/98, as a result of which none permission of the appellant to address on the point, a miscarriage of justice had taken place. See Oshodi v Eyifunmi (2000) NWLR (pt.8) 1273 at 1305.

The Supreme Court said thus: “Beside, the Court of Appeal should have called on the parties, particularly the appellants who were prejudiced by its finding to address it on the question of the identity of the issues in both cases before setting aside suo motu the decision made in their favour by the trial Court. See: IKOKU vs. EKEUKWU (1995) 7 N.W.L.R (PT. 410) 637 AT 654, OLUMOLU VS ISLAMIC TRUST OF NIGERIA (1996) 2 NWLR (PT. 430) 253 AT 266.

This is because the law is well settled that on no account should a Court raise a point suo motu, no matter how clear it may appear to be, and proceed to resolve it one way or the other without hearing the parties. See: UGO VS. OBIEKWE (1989) 1 NWLR (PT.99) 566 AT 581. If it does so, in a given situation where hearing from the party is necessary, it will be in breach of the party’s right to fair hearing, See: OJE VS BABALOLA (1999) 4 N.W.L.R. (PT. 185) 267 AT 280″. In the case at hand, there was no miscarriage of justice. The issue is resolved in favour of the 1st respondent.

ISSUES 2 & 3 2. Whether the Court of Appeal properly identified the main issue before it. 3. Whether the Court of Appeal was right in holding that the dismissal of Suit No. HOY/7/97 in limine constituted a bar to a subsequent action i.e HOY/6/98. For the appellant, learned silk submitted that the issue before the lower Court was whether or not the dismissal of Suit HOY/7/97 could act as a subsequent bar to the filing of Suit HOY/6/98.

That the actual fact is that the argument of both parties was on whether or not HOY/7/97 was dismissed in limine or on the merits and what effect had such a dismissal on the filing of a new suit. That the Court below did not properly identify this live issue but went on its own to raise the question of Section 287 of the 1999 Constitution and holding that a judgment is valid and binding until set aside which was erroneous as the real issue before it was not touched and pronounced upon which is the effect of the dismissal in HOY/7/97 and its effect in law.

The result being a miscarriage of justice. He cited Ebba v Ogodo (1984) 1 SCNLR 372; Okonji v Njokanma (1991) 7 NWLR (pt. 202) 131.

Learned Senior Counsel for the appellant contended that HOY/7/97 was dismissed on a preliminary point and the learned trial judge was right to hold that the dismissal had to do with a procedural defect and the dismissal in limine and not on the merit and the institution of the new action before him was neither vexatious nor an abuse of the process of Court. He cited Jelson v Harvery (1984) 1 All ER 12.

He stated that the dismissal under discourse had the effect of a mere striking out in law and so a subsequent action could still be brought. He referred to Kossen v Savannah Bank (1995) 25 SCNJ 29 at 40; Obasi Brothers v MBA Securities (2005) All FWLR (pt. 26) 216 at 232; Okoye v NCF (1991) 6 NWLR (pt. 199) 501 at 532.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<> Learned counsel for the 1st respondent advanced his views by contending that the dismissal of Suit NO.HOY/7/97 had not only put an end to the appellant’s claim but also created a bar to subsequent claims. He cited Ogbechie & Ors v Onochie & Ors (1988) 1 NWLR (pt.70) 370 at 395; Eronini & Ors v Iheuko (1989) 2 NWLR (pt.101) 46 at 60 etc.

That the fact that oral evidence had not been led in support of the appellant’s pleadings in Suit No. HOY/7/97 is not a justification for holding that the suit had been dismissed in limine and not on merit as in this case where the learned trial judge had considered the averments in the pleadings. He cited Egbe v Alhaji & Ors (1990) 1 NWLR (pt. 128) 546 at 591 etc.

On whether the institution of Suit HOY/6/98 after dismissal of Suit HOY/7/97 constitutes abuse of Court process, the exploration of the concept of abuse of Court process becomes germane. In the case of Saraki v Kotoye (1992) 9 NWLR (pt. 264) 156 at 188, this Court stated thus:- “The concept of abuse of judicial process is imprecise. It involved circumstances and situations of infinite variety and conditions. This will arise in instituting a multiplicity of actions on the same opponent on the same issues. See Okorodudu v Okoromadu (1977) 3 SC 21; Oyegbola v Esso West West (1966) 1 All NLR 170.

Thus the multiplicity of actions on the same parties even where exist a right to bring the actions 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”.

In the case at hand, the appellant had filed the instant suit between the same parties in respect of the same subject matter and issues as in Suit HOY/7/97 that had been dismissed.

The issue before the lower Court is whether or not the dismissal of suit HOY/7/97 could act as a subsequent bar to filing of Suit HOY/6/98. The argument of both parties was whether or not HOY/7/97 was dismissed in limine or on the merits and what effect that dismissal had on the filing of a new suit. While the appellant herein contended that Suit HOY/7/97 was dismissed in limine and as such could not be a bar to a subsequent action, the respondents took a contrary view.

​The lines along which this appeal is contested are stated hereunder as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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For the appellant, that what happened at the Court below could be cured by a simple amendment and so the dismissal of the action cannot translate to a dismissal on the merit. That the Suit No. HOY/7/97 was dismissed in limine without a hearing of the case on the merit hence its effect was a mere striking out. That the Court below had not considered the above position and had erroneously gone into raising the issues of Sections 287 and 270 of the 1999 Constitution without affording the parties an opportunity to address on the point.

The appellant further contended that the dismissal of HOY/7/97 was not a bar to the filing of a subsequent action such as HOY/6/98 which did not constitute an abuse of the Courts process.

The opposing contention of the respondent being that the consideration of the provisions of Sections 270 and 287 of the Constitution of the Federal Republic of Nigeria by the Court of Appeal in arriving at its judgment has not occasioned any miscarriage of justice to the appellant. That the order of dismissal put an end to the claim of the appellant and created a bar to the subsequent suit hence the institution of Suit No. HOY/6/98 by the appellant, after that earlier dismissal of HOY/7/97 constitutes an abuse of Court process.

The Appellant had earlier instituted Suit No. HOY/7/97 against the Respondents in respect of the land, the subject matter of this Suit in which he claimed 8 reliefs including the ones being claimed by the Appellant in this case. Suit No. HOY/7/97 was dismissed by the High Court on 5th day of February, 1998 on the ground that the Statement of Claim which the Appellant filed did not disclose a reasonable cause of action. The appellant filed an appeal against dismissal of Suit No. HOY/7/97 and later filed Suit No. HOY/6/98.

The 1st Respondent filed an application for dismissal of Appellant’s case in Suit HOY/7/97 and this suit is the land in dispute at Igbo-Ede. The trial Court also found that reliefs in the Suit No. HOY/ 7/97 includes the reliefs being claimed in this suit but nevertheless the action was held not to be vexatious or constitute an abuse of the process of the Court. However the Court of Appeal, Ibadan upturned the findings of the Learned Trial Judge.

​In the course of reaching its decision, the Court of Appeal made references to Sections 270 and 287 of CFRN. The appellant had a grouse on the Court below utilising those constitutional provisions without calling on the parties especially the appellant to address on it. That stance the 1st respondent rejects.

The sections are reproduced hereunder thus:- Section 270 (1) “There shall be a High Court for each State of the Federation. (2) The High Court of the State shall consist of- (a) A Chief Judge of the State, and (b) Such number of Judges of the High Court as may be prescribed by a Law of the House of Assembly of the State”.

Section 287 (1) provides “The. decision of the Supreme Court shall be enforced in any part of the Federation by authorities and persons, and by Courts with subordinate Jurisdiction to that of the Supreme Court. (2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate Jurisdiction to that of the Court of Appeal. (3) The decisions of the Federal High Court, High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of Law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts respectively.

It is to be said loud and clear that a Court of law has no legal duty to confine itself only to authorities cited by parties. It can, in an effort to improve its Judgment rely on authorities not cited by parties. The Court is also under no duty to give notice to the parties that it intends to use a particular book or authority.

See: Section 74(1) (a) Evidence Act 2004 which provides “The Court shall take judicial notice of the following facts - (a) all laws or enactments and any subsidiary legislation made thereunder having the force of law now heretofore in force, or hereafter to be in force, in any part of Nigeria.” Section 74 (1) (a) of Evidence Act 2004 is now Section 122 (2) (a) of Evidence Act 2011.

The consideration of the provisions of Sections 270 and 287 of Constitution of Federal Republic of Nigeria 1999 has not occasioned a miscarriage of justice and does not constitute a reason for this Court to reverse the judgment of the Lower Court.

I refer the case of CHIEF JOHNSON IMAH & ANOR VS CHIEF AJOWELE OKOGBE & ANOR (1999) 12 SCNJ 57 AT 77 where this Court held “However, it is wrong for a Court to raise and decide an issue because it is material for the determination of the case or appeal before it, which has not been raised by the parties to the case themselves without giving the parties an opportunity of being heard on it.” The principle emaciated in Imah v Okogbe (supra) above cited does not apply here.

It need be brought up that it is not in all instances of failure of a Court to give opportunity to the parties to address it that automatically occasions a miscarriage of justice since each case depends on its own merit. Therefore, it is not sufficient for the purpose of reversing a judgment merely to show that an error of law was committed by the trial or appellate Court. The appellant must further demonstrate or show that the error of law in the case in question occasioned a miscarriage of justice.

In other words, the error must have substantially affected the result of the decision and that is not the case in this instance. See Chief Johnson Imah & Anor v Chief Ajowele Okogbe & Anor (supra). In the case of OLADEJO ADEWUYI AJUWON & ORS VS FADELE AKANNI & ORS (1993) 12 SCNJ 32 AT 52 this Court held “It is not every error of law that is committed by a trial or appellate Court that justifies the reversal of a judgment.

An appellant, to secure the reversal of a judgment, must further establish that the error of law complained of did in fact occasion a miscarriage of justice and/or substantially affected the result of the decision. An error in law which has occasioned no miscarriage of justice is immaterial and may not affect the final decision of a Court. This is because what an Appeal Court has to decide is whether the decision of judge was right and not whether his reasons were, and a misdirection that does not occasion injustice is immaterial.

The error in law in applying the doctrine of lis pendens complained of did not occasion any miscarriage of justice. The erroneous application of the doctrine of lis pendens notwithstanding, there was no other course that was open to the Court of Appeal in the appeal than to invalidate the sale in issue and to dismiss the appeal before it”.

The reference by the Learned Justices of the Court of Appeal to Sections 270 and 287 of 1999 Constitution of the Federal Republic of Nigeria while arriving at their decision and judgment does not amount to raising a fresh issue which necessitated further addresses of counsel and that the reference has not occasioned miscarriage of justice.

On the concept of abuse of Court process, a long line of judicial authorities has explained it since the concept of abuse of judicial process is imprecise and involves circumstances and situations of infinite variety and conditions. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See SARAKI V KOTOYE (1992) 9 NWLR (PT. 264) 156 at 188. See: OKORODUDU VS OKOROMADU (1977) 3 SC 21; OYEGBOLA VS ESSO WEST AFRICA (1966) 1 ALL NLR 170.

It follows that, the multiplicity of actions on the same subject matter between the same parties even where exist a right to bring the actions 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 as in this case where the Appellant had filed the instant suit between the same parties in respect of the same subject matter and issues as in Suit No. HOY/7/97 that had been dismissed. That dismissal of suit No.

HOY/7/97 had not only put an end to the Appellant’s claim but also created a bar to subsequent claims. I place reliance on the following authorities – OGBECHIE & ORS VS ONOCHIE & ORS (1988) 1 NWLR (PT.70) 370 AT 395; ERONINI & ORS VS IHEUKO (1989) 2 NWLR (PT.101) 46 AT 60; REGISTERED TRUSTEES OF IFELOJU FRIENDLY UNION VS ALHAJA BEWAJI KUKU (1991) 5 NWLR (PT. 189) 65 AT 79. All sections of Ajayi family were parties to Suit No. HOY/7/97 and so are bound by the judgment in the said suit.

See: OKONJI VS NJOKANMA (1989) 4 NWLR (PT. 114) 161 AT 166 – 167; OTAPO VS SUNMONU (1987) 2 N WLR (PT.58) AT 623. The fact that oral evidence was not led in support of the Appellant’s pleading in Suit No. HOY/7/97 is not a justification for holding that the suit was dismissed in limine and not on merit.

The word “Hearing” was judicially considered by the Supreme Court in OKOYE & ORS VS NIGERIAN CONSTRUCTION & FURNITURES CO. LTD. & ORS (1991) 6 NWLR (PT.199) 501 AT 522 where this Court held “Hearing” a case is not only by oral evidence. Submissions from counsel without oral evidence from parties and the Court consequently giving judgment on the basis of the submissions may amount to hearing and determination of a case or matter. I call attention to the averments of facts pleaded by Appellant in his Statement of Claim in Suit No.

HOY/7/97 which were relied upon in the Respondent’s application case. The averments of facts pleaded by the Appellant were deemed to have been admitted for the purpose of the application. See: EGBE VS ALHAJI & ORS (1990) 1 NWLR (PT. 128) 546 AT 591. The submissions from counsel in Suit No. HOY/7/97 which were based on Appellant’s pleadings in the case constituted a hearing in the same. The Learned Trial Judge that dismissed Suit No. HOY/ 7/97 went into merits of the said suit before he dismissed same.

See: TOMTEC NIGERIA LIMITED VS FEDERAL HOUSING AUTHORITY (2009) 12 SCNJ 190 AT 201 -202 where this Court held “A decision on merit is one rendered after argument and investigation and a determination as to which of the parties is in the right as distinguished from a judgment or decision rendered upon some preliminary or formal part or by default and without trial”.

The facts in the case of KOSSEN (NIG) LIMITED & ANOR VS SAVANNAH BANK OF NIGERIA LTD (1995) NWLR (PT. 420) 439 are different from this case and the decision in the said case is not applicable to the case at hand.

The order of dismissal in question in the case was set aside by the Court of Appeal while the order of dismissal of Suit No. HOY/ 7/97 still subsists up till date. It needs be reiterated that a Court after the dismissal of a suit before it lacks the competence to delve into the matter any longer. The fact that the Court is being presided over by another judge of the same jurisdiction as the judge that dismissed Suit No. HOY/7/97 does not make any difference. The Court lacks the jurisdiction to re-phrase the judgment, of a Court of co-ordinate and competent jurisdiction.

I resolve this issue 3 to the effect that institution of Suit No. HOY/6/98 after dismissal of Suit No. HOY/7/97 constitutes an abuse of Court process and Suit No. HOY/6/98 should be dismissed. See: NGWO VS MONYE (1970) 1 ALL NLR 91, SHITTA BEY VS LEDB (1962) ALL NLR 373; CARDOSO VS DANIEL (1986) 2 NWLR (PT. 20) 1, UDO VS OBOT (1989) 1 NWLR (PT. 95) 59, ONUOHA VS NBN LTD (1999) 13 NWLR (PT. 636) 621 AT 624; PRINCE EYINADE OJO VS OLAYIWOLA OLAWORE (2008) 6 SCNJ 122 AT 136.

The appellant has laboured in vain in the action that had been determined with finality at the trial High Court with that dismissal albeit without a hearing of evidence. The circumstances surrounding that dismissal wherein the trial Court held that there was no disclosure of a cause of action made it so. Therefore, the institution of Suit No. HOY/6/98 by the appellant against the respondents constitutes an abuse of Court process, the said suit being between the same parties and on the same subject matter as Suit No. HOY/7/97 which had been dismissed.

The Court of Appeal was right on all fronts in the summation and conclusion.

The appeal clearly lacks merit and I dismiss it. I order costs of one Million (N1,000,000) to the 1st respondent to be paid by the appellant. Appeal Dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The facts that gave rise to this appeal are quite straightforward. By a Writ of Summons and Statement of Claim filed on 17/1/97, in suit No.

HOY/7/97, the 1st respondent herein, Reverend Joseph Adeniran Adegbanke, for and on behalf of the Ajayi family of Jagun Sodeke Compound of Ilora in Afijio Local Government of Oyo State sought declaratory and injunctive reliefs against the 3 respondents herein and one Chief Abel Adeleye in respect of the family farmland at Igbo-Ede, Eku Ijemu Nos 1 and 2, Igbon Nos. 1 and 2 and Iloko, at five different locations in and around Ilora Town in Oyo State.

​The 1st and 2nd defendants entered appearance and filed a motion to dismiss the suit on the ground that it disclosed no reasonable cause of action and that the plaintiff had no locus standi to institute the action. It was argued by the defendants, inter alia, that the plaintiff had averred in his pleading that Pa Ajayi had allotted the land in dispute to his son, Akinsanya Akanji absolutely during his lifetime and that having divested himself of the land, it could no longer form part of Ajayi family land after his death.

The plaintiff had pleaded that Pa Akinsanya had equally allotted four other portions of land to his four other sons absolutely.

The learned trial Judge, O.A. Boade, J. struck out the statement of claim on the ground that it disclosed no reasonable cause of action and proceeded to dismiss the suit and on the further ground that there were no material facts pleaded to support the claim. The plaintiff, now appellant, was dissatisfied with the ruling and appealed against it.

He later withdrew the appeal and filed a fresh suit – HOY/6/98, for himself and on behalf of the Akinsanya Akanji section of the Ajayi family, in respect of the parcel of land known as Igbo Ede, situate, lying and being at Ilora-ljaiye Road, Ilora in Afijio Local Government of Oyo State.

The respondents herein entered a conditional appearance and filed a motion to strike out the statement of claim and dismiss the suit for being an abuse of the Court’s process. The fresh suit was also before O.A. Boade, J.

​In his ruling delivered on 22/6/1998, His Lordship conceded that the parties, subject matter and reliefs in the two suits were similar, although the capacity in which the appellant sued was slightly different. That whereas he sued on behalf of the entire Ajayi familyin suit No. HOY/7/97, in HOY/6/98, he sued on behalf of only a section of the Ajayi family.

He held that since the previous suit was dismissed on the ground that the plaintiff sued in a wrong capacity, in other words, on the basis of a procedural defect, there was no abuse of the Court’s process, as the suit was not dismissed on the merit.

An appeal to the lower Court was on the ground that the learned trial Judge had no authority to interpret the order of dismissal in HOY/7/97, being an order of a Court of concurrent jurisdiction and furthermore, that the appellant was wrong to re-litigate a matter that had already been heard and determined by a Court of competent jurisdiction. I must say that I agree whole-heartedly with the lower Court.

The law is settled that the judgment of any competent Court, once perfected, and not appealed against, is valid and subsisting until it is set aside by competent Court or authority. See:Ojiako Vs Ogueze & Ors. (1962) 1 ALL NLR 58; Chukwueke vs Okoronkwo (1999) LPELR – 857 (SC) @ 16 – 17 F – A: Ugo vs Ugo (2017) LPELR – 44809 (SC) @ 10 – 11 C- A: lyoha vs Effiong (2007) 4 (SC) (Pt. III) 90: (2007) 11 NWLR (Pt. 1044) 31. The judgment remains binding and conclusive between the parties. Moreover, the learned trial Judge was not at liberty to sit on appeal over his own decision.

The Court below held at page 110 of the record: “The lower Court should have been guided by what the decision of suit No. HOY/7/97 actually was in relating to the matter before it, rather than what the decision sought to have been… The Court’s unqualified obligation is to enforce that judgment in suit No. HOY/7/97 as it is.”

I agree entirely with their Lordships. It is not for the trial Court or the appellant to determine that the effect of the dismissal of the suit is in fact a striking out, and on that basis, file a fresh suit involving the same parties, subject matter and similar reliefs. Only the Court of Appeal could have made that determination. The appellant did not pursue his appeal against the order of dismissal but rather elected to file a fresh suit.

This Court held in African Reinsurance Corporation Vs JDP Construction Ltd. (2003) LPELR – 215 (SC) @ 28 A- F, per Niki Tobi, JSC, thus: “Where a party duplicates a Court process, the more current one, which results in the duplication is regarded as an abuse of the Court’s process. Abuse of process of 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 also mean abuse of legal procedure or improper use of legal process as in this case. See: Amaefule Vs The State (1988) 2 NWLR (Pt. 75) 156.

An abuse of process always involves some form of bias, malice, some deliberateness, some desire to misuse or divert the system. See: Edet Vs The State (1988) 2 NWLR (Pt. 75) 156. There is said to be an abuse of the process of the Court when a party improperly uses the issue of the judicial process of the Court to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter, against the same opponent on the same issues as in the instant case. See: Okafor Vs Att. Gen. and Comm. for Justice, Anambra State (1991) 6 NWLR (Pt. 200) 659.

See also: Messrs NV scheep Vs The MV “S-Araz” (2000) 15 NWLR (Pt. 691) 622.”

​The appellant’s suit No. HOY/6/98 bears all the hallmarks of an abuse of the Court’s process. The decision of the lower Court setting aside the ruling of the learned trial Judge and allowing the appeal has not been shown to be perverse. There is no basis for interference by this Court.

I have had the opportunity of reading in draft, the judgment of my learned brother, Mary Ukaego Peter-Odili, JSC, just delivered. I agree, for the reasons I have expressed herein, and for the fuller reasons advanced in the lead judgment, that this appeal is devoid of merit. I also dismiss it and abide by the consequential orders made. Appeal dismissed.

EJEMBI EKO, J.S.C.: The named Appellant, as the Plaintiff, is the head of the Akinsanya Section of the Ajayi Family of Jagun Sodeke Compound of Ilora, Oyo State. The founder of this said Ajayi Family, one Pa Ajayi, had in his lifetime various parcels of land. He died instestate. He had 5 sons and the eldest was Akinsanya (the progenitor of the Akinsanya Section of the Ajayi Family).

Before his death Pa Ajayi had inter vivos partitioned his property. He allocated the disputed parcel of land - Igbo-Ede land, to his eldest son, Akinsanya. The Plaintiff, the Appellant herein, was very much aware of this fact -which is very manifest and clear from paragraphs 6, 7, 8, 9 and 11 of the Statement of Claim in this suit No. HOY/6/98, the subject of this appeal.

In the earlier suit No. HOY/7/97, particularly paragraphs 5, 6, 7, 8 et.al. of the Statement of Claim (particularly reproduced at pages 14 - 18 of the Records) this same Appellant, as the Plaintiff in that suit, had also demonstrated his knowledge of the fact that Pa Ajayi in his lifetime, upon partitioning his land, had allotted the disputed parcel of land, Igbo-Ede Land, to his first son, Akinsanya.

The foundation on which both suits (HOY/7/97 and HOY/6/98) rested is the fact of the partition his land by Pa Ajayi; and the ownership of the Igbo-Ede land vesting in Akinsanya, or the Akinsanya Section of the Ajayi Family, from the fact of Pa Ajayi partitioning his land and allotting the Igbo-Ede land exclusively to Akinsanya.

In suit HOY/ 7/97 this Appellant, as the Plaintiff, had sued 4 named defendants. He sought the following reliefs in paragraph 26 of the Statement of Claim. That is – 26. WHEREOF the Plaintiff claims 1. Declaration that the entire members of Plaintiff’s family are entitled to Statutory Right of Occupancy in respect of various tracts of their family farmland at Igbo-Ede, Eku Ijomu Nos. 1 and 2 Igbon Nos. 1 and 2, and Ikoko at five different locations in and around effective possession and occupation of Plaintiff’s family from the Immemorial. 2.

Declaration that the Plaintiff family never granted or alienated its farmland at Igbo-Ede to 1st and 2nd defendants or their agents or privies by way of sale or gift and Plaintiff family is still entitled to right of occupancy over the said farmland. 3.

Declaration that the act of the 1st Defendant whereby sometime in December, 1993 he erected a signboard bearing the inscription “OLORO” on the said farmland at Igbo-Ede which signboard Plaintiffs Family finds objectionable and provocative and therefore opposed and which 1st Defendant refused or neglected and still refuses and neglects to remove despite Plaintiffs repeated requests to him to do constitute a grave act of nuisance and provocation on the part of the 1st defendant to the plaintiff. 4.

An order of the Court ordering the 1st defendant to remove the said offending signboard forthwith since plaintiff finds it objectionable, provocative and unbearable. 5. An order setting aside the grant to the 1st defendant by the 3rd defendant through the 4th defendant of Certificate of Occupancy No. 22/22/2378 dated 26/5/81 and No. 30/30/3150 dated 26/10/95 of Land Registry in the office at Ibadan over part of plaintiff’s family farmland at Igbo-Ede which were obtained by the 1st defendant without the knowledge, consent or authority of the plaintiffs family. 6.

An order setting aside the sale and/or conveyance of part of the land at Igbo-Ede to the 2nd defendant the said sale and/or conveyance having been made by the 1st defendant without the knowledge, consent or authority of plaintiff’s family. 7.

Injunction restraining the 1st and 2nd defendants, their servants, workmen or agents of their or agents or their or any of them or otherwise howsoever from entering into or committing further acts of trespass on the plaintiff’s land at Igbo-Ede and from selling or alienating or otherwise dealing with the said land without knowledge, consent or authority of plaintiff’s family. 8.

N500,000.00K damages for trespass committed by the 1st and 2nd defendants, their servants, and/or their agents, or privies on the said farmland at Igbo-Ede in effective possession of plaintiff’s family in that the 1st and 2nd defendants entered the said land and destroyed plaintiff’s palm trees and other economic plants and substance on the said land and commenced or caused to be commenced building operation on the said land.

The defendants in suit HOY/7/97 and HOY/6/98 are substantially the same. Chief Abel Ogundokun Odeleye and Dr. Toyin Ojelabi remained, respectively the 1st and 2nd Defendants in both suits. The 3rd Defendants, respectively, were the Military Administrator of Oyo State. The 4th Defendants, respectively were the Commissioner for Lands Oyo State, and Director General, Ministry of Lands Oyo State. ​ In the suit HOY/6/98, the subject of this appeal, the Appellant, as the Plaintiff, claimed the following reliefs against the defendants. That is – 27. WHEREOF the Plaintiffs claim as follows – 1.

A Declaration that the plaintiff’s family i.e Akinsanya Akanji Section of Ajayi family of Jagun Sodeke Compound, Ilora, is entitled to a right of occupancy over all that land known as Igbo-Ede, lying and being along Ilora-ljaiye Road, Ilora in Afijio Local Government Area of Oyo State. 2.

An order setting aside the grant to the 1st defendant by the 3rd defendant through the 4th defendant of certificates of occupancy No. 22/22/2378 dated 26/5/81 and No. 30/30/3150 dated 26/10/95 of the Lands Registry Ibadan over part of the Plaintiff’s family land at Igbo-Ede which was obtained by the 1st defendant without the knowledge, consent or authority of the Plaintiff’s family. 3.

An order setting aside the sale and or conveyance of part of the land at Igbo-Ede to the 2nd defendant, the said sale and or conveyance having been made by the 1st defendant without the knowledge consent or authority of the plaintiff’s family. 4. Injunction restraining the 1st and 2nd defendants whether by themselves, their agents, servants, privies or otherwise howsoever called from entering into or committing further acts of trespass on the Plaintiff’s land at Igbo-Ede. 5.

The sum of N10,000.00K being damages for trespass committed by the 1st and 2nd Defendants, their agents, servants, privies or otherwise howsoever called when they entered into the plaintiff’s farmland at Igbo-Ede and destroyed the Plaintiff’s palm trees and other economic plants and substance on the said land and commenced or caused to be commenced or caused to be commenced building operations on the said farmland.

In suit HOY/7/97 the named Plaintiff, notwithstanding the indubitable fact of the original owner, Pa Ajayi, partitioning his land and allotting the said Igbo-Ede parcel of land to Akinsanya (which parcel is now belonging exclusively to the Akinsanya Section of the Ajayi Family); the Plaintiff (herein the Appellant) had purportedly sued the defendants claiming to be suing them “for and on behalf of Ajayi Family of Jagun Sodeke Compound of Ilora”.

Paragraphs 5, 6, 7, 8 and et. al., of the statement of claim (at pages 14-16 of the Record) betraying the vexation and frivolity of his cause provided the solid anchor on which the defence fastened the preliminary objection of the 2nd Defendant that 1. The suit disclosed no reasonable cause of action; 2. The plaintiff had no locus standi, and 3. The action was frivolous, vexatious and an abuse of process.

The trial Court, in its considered Ruling on the hotly contested preliminary objection, agreed with the 2nd defendant and allowed the preliminary objection; emphasizing particularly that Pa Ajayi, in his lifetime, had partitioning his land and had allotted the disputed parcel, Igbo-Ede land, to Akinsanya; and that the plaintiff on behalf of Ajayi Family, had no interest in the land pa Ajayi had earlier divested himself of title over the said Igbo-Ede land.

The trial Court dismissed the suit under Order 24 Rule 4 and Order 25 Rule 30 of the extant Rules of the Oyo State High Court which respectively empower it to dismiss the suit as may be just. It had earlier found that the facts averred in the Statement of Claim “could not establish the claim before the Court” and that as they “do not support the claim before the Court, it follows that the plaintiff has failed to support his claim with material facts upon which the Court could find for the plaintiff”

The Appellant, on the authority ofKOSSEN v. SAVANNAH BANK (1995) 25 SCNJ 29 at 40 and OBASI BROTHERS v. MBA SECURITIES (2005) ALL FWLR (pt. 261) 216 at 232, had argued that since the dismissal of the suit HOY/6/98 was not “on the merits”; the suit HOY/6/98 was properly filed. He did not address the issue of the suit HOY/6/98 being filed in abuse of Court process in view of his pending appeal against the dismissal order in the suit HOY/7/97.

He also did not address the provisions of Order 24 Rule 4 of the extant Rules of Oyo State High Court and the fact that in the preliminary objection the defence prayed that the suit HOY/ 7/97 be terminated in limine inter alia for disclosing no reasonable cause of action; and that the action was frivolous, vexatious and an abuse of judicial process. An action may be dismissed and judgment entered for the defence if it is shown from the pleadings to be frivolous and vexatious: Fidelis Nwadinlo – Civil Procedure In Nigeria (2nd ed) page 425.

Usually it is said to be frivolous when its filing serves no other purpose than merely wasting the time of the Court and all concerned. Such action is said to be “without substance or groundless or fanciful”: BULLEN LEAK & JACOB’S PRECEDENTS OF PLEADINGS 12TH; P. 145; WILLIS v. EARL BEAUCHAMP (1886) 11 PD 39. ​Either under Order 24 Rule 4 or Order 25 Rule 20 of the extant Rules of the trial High Court the said trial Court empowered to dismiss a suit and enter judgment for the defendant where the suit was found to be frivolous, vexatious or an abuse of the Court process. In MACDAUGALL v.

KNIGHT (1890) QB 25 the defendant was held entitled to the plea of estoppel rem judicatam on the fact of the previous suit terminated having been found to be frivolous and vexatious. Certainly, on these expositions I should hold, and I hereby hold, that the semantics of when a decision is on the merits and when it is not on the merits – KOSSEN v. SAVANNAH BANK (supra) and OBASI BROS v. MBA SECURITY (supra), would not avail the Appellant in the peculiar circumstances of this case.

Frivolous and vexatious suits are always driven by the mindset to abuse the due process of Court and administration of justice. The Courts frown at such conduct. No litigant has any vested right to bring or continue proceedings which abuse judicial process by way of a frivolous or vexatious action. Accordingly, the Courts have inherent powers to check such perversion of its process by terminating it in limine: ADESANOYE v. ADEWOLE (2000) 9 NWLR (pt. 671) 127 at 153; YUSUF v. AKINDIPE (2000) 8NWLR (pt. 669) 376 at 387 – 388.

The appropriate order to make when abuse of process is manifest is an order dismissing the offensive or perversive action or process: ARUBO v. AIYELERU (1993) 3 NWLR (PT. 229) 126 at 142.

The Appellant, as the plaintiff in suit HOY/7/97, appealed the decision to the Court of Appeal. The appeal being by dint of Order 7 Rule 2 (1) of the Court of Appeal Rules and Section 15 of the Court of Appeal Act, by way of rehearing is a continuation of the action wherein the decision was being appealed. As long as this appeal subsists between the parties the suit between them persists and remains alive.

Even if there was no appeal, or the appeal had been discontinued, the effect is that the decision in suit HOY/ 7/97 remains extant and subsisting between the parties thereto unless set aside: ROSSEK v. ACB LTD (1993) 8 NWLR (pt. 312) 382. It is not for the plaintiff, against whom the decision was rendered to treat it, in his discretion, as non-existing and not binding on him. The adverse finding of fact against this same plaintiff (HOY/7/97) that the fact of pa Ajayi partitioning his land and allotting the disputed Igbo-Ede land to Akinsanya denuded him of any reasonable cause of action.

It is that fact that rendered his suit HOY/7/97 frivolous, vexatious and an abuse of the Court’s process in the opinion of the trial Court. While the appeal in suit HOY/7/97 was subsisting, this same Appellant, the plaintiff in suit HOY/6/98, had instituted yet another suit against the same defendants. The trial Court in suit HOY/6/98 treated the dismissal of suit HOY/7/97 as a mere striking out Order, and therefore not a bar to the plaintiff presenting the suit no HOY/6/98.

If the learned trial Judge was aware of the pending appeal; this unfortunate, howbeit recklessly impetus exuberance of usurping the functions of the Court of Appeal was clearly contemptuous of the Court of Appeal. He, being a Judge of co-ordinate jurisdiction and/or of the same Court, cannot sit on appeal to review the dismissal order. He was clearly functus officio. ​The lower Court, per M. D.

Muhammad, JCA (as he then was) had observed, correctly at page 110 of the Record – It must be conceded to the learned Appellants’ counsel that the objection to (the) Respondent’s action in the instant matter, suit HOY/6/98, being on the basis of the dismissal of (the) Respondent’s earlier suit, HOY/7/97 must necessarily be sustained. The dismissal might be wrong in law. The decision remains binding as long as it subsists and has not been set aside by a Court of competent jurisdiction. And finding support in ERONINI v. IHEUKO (1989) 2 NWLR (pt. 101) 46; NGWO v.

MONYE (1970) 1 ALL NLR 91; SHITTA-BEY v. L. E. D. B (1962) 1 ALL NLR 373; CARDOSO V. DANIEL (1986) 2 NWLR (pt. 20); UDO v. OBOT (1989) 1 NWLR (pt. 95) 59; the lower Court stated the law correctly that “the dismissal (of suit HOY/7/97) constitutes a bar to the subsequent actions in respect of the same parties and subject matter”. The learned trial Judge, in suit HOY/6/98, lacking the jurisdiction and vires to review the dismissal order could not competently commute it to mere “striking out” order.

Seen from another angle of abuse of Court’s process, which the trial Court (in HOY/7/97) seemed also to agree on; the material fact is the guilty mind of the same plaintiff in instituting suits HOY/7/97 and HOY/6/98 against the same defendants and equity acts in personam. The improper use of judicial process in the multiple suits to irritate, annoy and harass the defendants, his opponents, is itself an abuse of judicial process; SARAKI v. KOTOYE (1992) 9 NWLR pt. 264) 156; ONUOHA v. NBN LTD (1999) 13 NWLR (pt. 636) 621 at 624.

The finding in suit HOY/ 7/97 that the suit was frivolous and vexatious tantamount to its being annoying, irksome, irritating, tormenting and upsetting. In either suit: HOY/7/97 or HOY/6/98, for the plaintiff to be aware of the fact that pa Ajayi, in his life time, had partitioned his land and had inter vivos allotted the disputed Igbo-Ede Land to Akinsanya and yet conceived and instituted suit HOY/7/97 was clearly mala fide.

And yet for the same plaintiff in suit HOY/6/98, after his misadventure in suit HOY/7/97, to proceed subsequently against the same defendants on the facts (but wearing a different face); there can be no better case of mala fide gimmickry and mischief to abuse the due process of the Court. Abuse of judicial process comes in various forms. It involves circumstances and situations of infinite variety and condition but the common feature is improper use of the judicial process by a party in litigation to interfere with the due administration of justice: R. BENKAY LTD v. CARDBURY NIG.

LTD (2012) 3 SC (pt. 3) 169 (SC); AGWASIM v. OJICHIE (2004) 10 NWLR (pt. 882) 613 (SC) at 624 – 625. Multiplicity of actions on the same subject matter by the plaintiff against the same opponent, as in this case, is also an abuse of judicial process: OKOROMADU v. OKOROMADU (1977) 3 SC 121.

In litigation, consistency is the rule. Thus a party over the same issue and subject matter is not allowed to approbate and reprobate at the same time:AJIDE v. KELANI (1985) 3 NWLR (pt. 12) 251. The Appellant’s inconsistency in the two suits HOY/7/97 and HOY/6/98 clearly betrays his intent to abuse the due process of the Court.

Over the same parcel of land the Appellant in suit HOY/ 7/97 was suing “for and on behalf of Ajayi Family of Jagun Sodeke Compound of Ilora concurrently in HOY/6/98 (as appeal in HOY/7/97 was still pending) the Appellant, in a manner of the unwantedly cursed and enchanted “abiku spirit” that kept “coming and going”, had sued the same defendants “for and on behalf of Akinsanya Akanji section of Jagun Sodeke Compound of Ilora’ . Suits HOY/7/179 and HOY/6/6198 are thus mutually and dangerously contradictory as to the titles the same Appellant is seeking.

This Appellant purporting to be a “Reverend Joseph Adeniran Adegbanke” is clearly flippant and irrevent in every step in the two suits.

My Lords, in agreement with my learned brother, MARY UKAEGO PETER-ODILI, JSC the judgment I had a preview of; I do not hesitate to dismiss this appeal. I hereby endorse and adopt the said judgment including all consequential orders made therein. Appeal dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice M. U. Peter – Odili, JSC has graciously obliged me with a copy of the draft of the judgment just delivered. Having had a preview thereof, I cannot but align myself with the reasoning reached in the judgment in question, to the conclusive effect that the instant appeal lacks merits.

Of the three issues canvassed by the Appellant, the issue No. 1 is most instructive, viz: (A) Whether the Court of Appeal was right in suo mou raising and deciding the issue of Sections 270 and 287 of the 1999 Constitution without giving the opportunity to address on the point.

Fundamentally, there are some basic attributes of fair hearing: (i) That the Court shall accord hearing to both sides in regard to all material issues or points in the case before reaching a decision which may be prejudicial to any of the parties thereon: SHELDON VS BROMFIEL JUSTICES (1964) 2 QB 573 @ 578; (ii) That the Court shall give equal treatment, opportunity and consideration to all the parties concerned: ADIGUN VS.

AG, OYO STATE (1987) 1, NWLR (PC 53) 678. (iii) That the proceedings of the Court shall be held in public and all parties concerned shall have un restricted access to and be notified of such avenue of public hearing; and (iv) That having regard to the circumstances surrounding the case, in every material decision arrived at, justice must not only be done but manifestly and unquestionably be seen to have been done: R VS. SUSSEX JUSTICES, EXPARTE MC CARTHY (1924) 1 KB 256 @ 259; DEDUWA VS.

OKORODUDU (1976) 10 SC 329. ​The foregoing trite attributes of the fundamental right to fear hearing, are to the combined effect that where a Court or Tribunal is to determine the civil rights and obligations of a person, or to find him guilty or liable of a fault, then he must be accorded a hearing before the decision can be taken thereupon. See, Section 36(1) of the Constitution of the Federal Republic of Nigeria as amended. BABA VS. NCATC, ZARIA (1991) LPELR – 692 (SC) Per Nnaemeka – Agu, JSC @ 17 paragraphs D – F .

In the main, the Appellant’s grouse on the issue is that the trial Court suo motu raised and determined the issue of applicability or otherwise of Sections 270 and 287 in the course of the vexed judgment. And that the trial Court in doing so, failed to invite the parties to address it on the point. I think, it was in the notorious case of GARBA VS.

UNIMAID, that this Court aptly reiterated the genesis of the fundamental doctrine of fair hearing: Even God gave Adam an oral hearing despite the evidence supplied by his nakedness before the case against his continued stay in the Garden of Eden was determined against him… Once an Appellant shows that there is an infringement of the principle of natural justice against him, it is my view that he needs show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. SeeGARBA VS. UNIMAID (1981) INSCC 25; ADIGUN VS AG.

OYO STATE (1987) NWLR (Pt. 53) 677 @ 707; COLE VS.MATTINS (1968) All NLR 161.

In the locus classicus, COLE VS MATTINS (Supra), this Court echoed the guiding fundamental principle regarding raising issues or points suo motu by Courts: We have frequently stated in the past and we must reiterate again now, that it is most desirable that if a Court considers after hearing argument of counsel that a matter before it can in fact be decided on a technical point on which it has not been addressed by counsel, the Judge should have the matter reopened and give counsel on each side the opportunity to address him on the point which he thinks may decide the matter before he gives judgment in regard to it.

It is in our view only after so doing that a Court should adjudicate on a technical point taken by the Court itself, particularly when the defect, if there is one, could be cured if the Court in its discretion give leave to amend. Per Lewis, JSC @ 163. See also REGISTERED TRUSTEEES OF APOSTOLIC CHURCH OF LAGOS AREA VS AKINDELE (1967) NMLR 263 per Lewis, JSC @ 264; TRUTEC INVESTMENTS SERVICE LTD VS. MONIPULE LTD: CA/L/308M/03; 18/03/2010, Per Saulawa, JCA (as he then was).

In the instant case, there is no doubt that the trial Court, nay any Court of law for that matter, is duly cloaked with the power to take judicial notice of all the laws, enactments, and any subsidiary legislations made there under in any part of Nigeria.

See Section 122 of the Evidence Act 2011 No. 18, which provides: 122. (1) No fact of which the Court shall take judicial notice under this Section needs to be proved. (2) The Court shall take judicial notice of- (a) all laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria; (b) all Public Acts or Laws passed or to be passed by the National Assembly or a State House of Assembly, as the case may be, and all subsidiary legislation made under them and all local and personal Acts or Laws directed by the National Assembly or a State House of Assembly to be judicially noticed. ​ Undoubtedly, this Court had reiterated in a plethora of authorities, that a Court of law is not obliged to restrict or confine itself only to authorities cited and relied upon by the parties.

Indeed, the Court is cloaked with an unfettered discretionary power to enrich the quality of its decision, refer to and rely upon creditable authorities not envisaged by the parties in the briefs or addresses thereof. See ORUGBO VS BULARA UNA (2002) 9 SCNJ 12 @ 32-32: Historical books or whatever books are authorities and the Koko Districts Customary Court was free to make use of them in its judgment. That perse is not breach of fair hearing; not even the twin rules of natural justice.

The Court is under no duty to give notice to the notice to the parties that it intends to use a particular book. That will be a ridiculous situation. Most interestingly, however, there is a caveat to the above dictum! In my considered view, citing a book is one thing, but attaching weight to the views expressed therein in the course of the decision or judgment is an entirely different ball-game. As aptly admonished by this Court four and a half decades ago: The Courts are not to be hypnotised by the authority of print.

The crucial fact is that a book cannot be cross-examined, either as to the opinion expressed, or as to the author to have special knowledge. If the author is living, there is no reason why he should not be tendered as an expert witness, when this difficulty would vanish. See IDUNDUN VS. OKUMAGBA (1976) LPELR – 1431 (SC) Per Fatayi-Williams, JSC (as the learned lord then was quoting Lionel Brett, JSC) @ 23 paragraphs A – E.

In the instant case, there is undoubtedly nothing wrong, unusual or prejudicial about the trial Court suo motu resorting to the provisions of Sections 270 and 287 of the 1999 Constitution (Supra) in the course of the judgment.

Most particularly, Section 270 of the Constitution merely deals with the establishment of the High Court of a State of the Federation, thereby providing that – 270. (1) There shall be a High Court for each of the Federation. (2) The High Court of a State shall consist of- (a) a Chief Judge of the State; and (b) such number of Judges of the High Court as may be prescribed by a law of the House of Assembly of the state.

On the other hand, Section 287 of the 1999 Constitution (Supra) merely deals with enforcement of decisions of Courts of record, to the following effect: 287. (1) The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by Courts with subordinate jurisdiction to that of the Supreme Court. (2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Court of Appeal. (3) The decisions of the Federal High Court, a High Court and all of other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of Law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other Courts, respectively. ​Thus, contrary to the misconceived Appellant’s proposition, the trial Court and indeed every Court of law in this Court, is endowed with far-reaching unfettered discretionary power to cite, or allude to enactments, books et al it deems appropriate or expedient in the course of the decision or judgment thereof.

Hence, against the foregoing postulates, and the well detailed reasoning and conclusion reached in the lead judgment just delivered by my learned brother, the Hon. Justice M. U. Peter-Odili, JSC, there is every cogent reason for me to hearken to the view that the instant appeal is grossly unmeritorious, thus liable to be dismissed. Accordingly, the appeal stands dismissed.

I abide by the consequential order of cost of N1,000,000.00 awarded in favour of the 1st Respondent against the Appellant.

ADAMU JAURO, J.S.C.: I read in draft the lead judgment of my learned brother, Mary Ukaego Peter-Odili, JSC just delivered. I am in agreement with the reasoning and conclusion contained therein, to the effect that the appeal lacks merit.

I adopt the facts as set out in the lead judgment. The reference made by the Court below to Sections 270 and 287 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was not a fresh issue that required further address of counsel. The Court had no legal duty to confine itself to authorities cited or relied on by the parties. See ORUGBO V. UNA (2002) LPELR-2278 (SC); FINNIH V. IMADE (1992) 1 NWLR (PT. 219) 511.

In its reliance on the aforementioned provisions of the Constitution, the Court below merely agreed with the 1st Respondent’s counsel (Appellant’s counsel before the Court below) that the judgment of a Court of competent jurisdiction is subsisting until set aside.

The Court in suit No. HOY/7/1997 dismissed the Appellant’s case for failure to disclose a reasonable cause of action and lack of requisite locus standi to institute the action. The Appellant appealed against the decision, but chose to subsequently withdraw same. The Appellant thereafter filed suit No. HOY/6/1998 against the same Defendants, in respect of the same parcel of land and sought similar reliefs as in the earlier dismissed suit No. HOY/ 7/1997. The order of dismissal entered by the Court in suit No.

HOY/7/1997 operates as an estoppel per rem judicatem and bars the Appellant from re-litigating the subject matter. See MAKUN & ORS V. FUTMINNA & ORS (2011) LPELR – 15514 (SC); EJIOFOR V. ONYEKWE & ORS (1972) LPELR – 1068 (SC). The lower Court was therefore right to have held that the trial Court having earlier dismissed suit No. HOY/7/1997 had become functus officio in respect of the subject matter, notwithstanding that suit No. HOY/6/1998 came up before another Judge of that Court.

​In conclusion, I hold that this appeal is devoid of merit and same is hereby dismissed. I abide by all the consequential orders made in the lead judgment.

Judgment

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The disputed land in this matter is a piece of farmland at Kuwyi in Niger State. The Respondents herein claim ownership of the land, being inheritance from their respective fathers, who are brothers; and who had inherited the land from their grandfather.

From the facts pleaded by the Respondents, there had been previous litigation over the land before the Gwada Area Court which entered judgment in favour of the Appellant, but on further appeal to the Upper Area Court, Minna, the judgment of the Gwada Area Court was set aside and a retrial was ordered. ​With the success at the Upper Area Court, the 1st Respondent commenced another action against the Appellant at the Sharia Court, Gwada. While the said action was pending, the Respondents instituted the proceedings which spawned this appeal before the High Court of Niger State in SUIT NO.

NSHC/MN/220/2011: ALHAJI IBRAHIM IDRIS & ANOR. vs. BAWA MAGAJI.

The Respondents claimed the following reliefs: ​“Whereof the plaintiffs claim from the defendant a declaration of title to the land Kuwyi, an order of perpetual injunction restraining the defendant his servant assign and privies from trespassing further trespassing on the land; they also claim the sum of N1,000,000.00K general damages for trespass to the land since 2001 plus substantial costs.” ​The Court processes were served on the Appellant and learned counsel filed a Memorandum of Appearance on Protest for the Appellant. (See page 16 of the Records).

In the said Memorandum of Appearance, the Appellant’s address for service was stated to be through his Solicitors. Aside the filing of the Memorandum of Appearance, the Appellant did not file any other process or take any steps to defend the action. The Respondents consequently filed a motion for judgment in default of defence. The said motion which was filed on 12th February 2013 is at pages 114-117 of the Records of Appeal.

The lower Court upon being satisfied that the motion and hearing notice were served on the Appellant at the address for service supplied in the Memorandum of Appearance proceeded to hear the motion for judgment in default of defence; and in its judgment which was delivered on 25th March 2013, the lower Court entered judgment for the Respondents as follows: “It is thus hereby ordered that judgment is hereby entered in favour of the plaintiff/applicant against the defendant/respondent, in terms of plaintiffs’ statement of claim.

The plaintiffs are hereby declared as owners of title to the land called KUNYI. It is hereby Ordered that perpetual Injunction is granted to the plaintiffs restraining the defendant, his servants, assigns and privies from trespassing and further trespassing on the said land.

It is further Ordered the defendant to pay the sum of N100,000.00 (One Hundred Thousand Naira) only as general damages to the plaintiffs for the trespass.” ​The Appellant was dissatisfied with the decision of the lower Court and with the leave of this Court granted on 17th January, 2019, he filed his original Notice of Appeal on 24th January 2019. The said Notice of Appeal is at pages 136-142 of the Records, while the judgment of the lower Court is at pages 122-123 of the Records.

However, the extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 22nd September 2021, pursuant to the order of this Court made on 16th September 2021. The Records of Appeal was compiled and transmitted on 21st March 2019 and briefs of argument were filed and exchanged, which briefs learned counsel adopted and relied upon at the hearing of the appeal. The Appellant filed his brief on 28th March 2019 and Reply Brief on 13th May 2019; while the Respondent’s Brief was filed on 30th April 2019.

Even though the Respondents incorporated a preliminary objection in their brief of argument (see pages 2-3 of the Respondents’ Brief); they however failed to move the same at the hearing of the appeal. Accordingly, the said preliminary objection is deemed as abandoned and consequently discountenanced. It is struck out and would play no part in the resolution of this appeal. See CAREW vs. OGUNTOKUN (2011) LPELR (9355) 1 at 28-29, NSEFIK vs. MUNA (2013) LPELR (21862) 1 at 36-37 and THE REGD TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA vs.

NAMA (2014) LPELR (22372) 1 at 26-28. ​Let me further state that an appeal is by way of rehearing vide Order 7 Rule 2 (1) of the Court of Appeal Rules, 2021. See IHUNWO vs. IHUNWO (2013) 8 NWLR (PT 1357) 550 at 571, DPP vs. INEC (2008) LPELR (4044) 1 at 43 and ONUKOGU vs. ONUIGBO (2015) LPELR (24574) 1 at 54-55. The rehearing is based on the materials on which the lower Court arrived at the decision appealed against; except in situations where leave had been granted for further evidence to be adduced on appeal.

After the judgment of the lower Court subject of this appeal, the Appellant made a futile attempt for the lower Court to set aside the judgment. The processes in respect of the application to set aside the judgment has been incorporated in the Records of Appeal and the parties have freely made reference to the same in their respective briefs of argument. I am unable to follow learned counsel on that route as the said processes were not before the lower Court as at the date of judgment and did not form part of the materials on which it arrived at its judgment.

Accordingly, I would disregard all submissions about processes, proceedings and rulings that occurred after 25th March 2013 when the judgment appealed against was delivered. ​Additionally, in the prolegomenon, I stated that the decision of the lower Court was based on a motion for judgment in default of defence. No evidence was adduced in proof of the reliefs claimed.

The Appellant has however gone to town with submissions on the sufficiency vel non of the traditional history pleaded by the Respondents and the character or quality of evidence required to prove traditional history, as well as the duty of the Court in evaluation of evidence. In the light of the fact that no evidence was adduced in the matter, the said submissions are otiose and are not deserving of review and consideration in the diacritical circumstances of this matter. The Appellant distilled three issues for determination in his brief of argument, scilicet: “1.

Whether the Honourable trial Court was right in refusing to dismiss Suit No: NSHC/MN/220/2011 whereas by the depositions and admissions of the Respondents, the said suit constituted an abuse of the process of Court? 2. Whether the learned trial Judge was right in refusing to dismiss Suit No: NSHC/MN/220/2011 whereas the plaintiffs/respondents failed woefully to prove their case? 3.

Whether the learned trial Judge was right in refusing to dismiss the case of the plaintiffs/respondents whereas they relied solely on the perceived weakness of the defendant’s case in the suit?” On their part, the Respondents formulated two issues for determination in their brief of argument, videlicet: “1. Whether the lower Court has the jurisdiction to deliver judgment in favour of the respondent in this case. 2.

Whether the learned trial Judge was right to have refused to dismiss the respondent’s case because it does not in any way constitute an abuse of the process of the Court.” I will presently review the relevant submissions of learned counsel on the respective issues crafted by them and then seamlessly resolve the appeal en bloc. SUBMISSIONS OF THE APPELLANT’S COUNSEL It is the Appellant’s submission that the lower Court ought to give regard to all the circumstances of the case in order to arrive at a proper determination of the case.

It was stated that the Respondents’ processes disclosed that the action was an abuse of process and so the lower Court ought to have dismissed the case for being an abuse of process. The cases of SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 at 188, AJUWA vs. SPDCN LTD (2008) 10 NWLR (PT 1094) 64 at 91 and UMEH vs. IWU (2008) 8 NWLR (PT 1089) 125 at 243-244 were referred to on the concept of abuse of process.

It was posited that the averments in paragraphs 16 (b) and 17 of the Respondents’ Statement of Claim show that the action was pending in three different Courts at the same time, which is multiplicity of actions, in consequence of which the last action filed is in abuse of process vide ETTE vs. EDOHO (2009) 8 NWLR (PT 1144) 601 at 609-610, DINGYADI vs. INEC (2011) 18 NWLR (PT 1224) 1 at 74-75 and 130, A-G ANAMBRA vs. UBA (2005) 15 NWLR (PT 947) 44 at 68, SARAKI vs. KOTOYE (supra), AFRICAN REINSURANCE CORPORATION vs. J.D.P.

CONSTRUCTION NIG LTD (2003) 4 SCM 1 at 17 or (2005) [sic] 13 NWLR (PT 838) 609 at 635 and TSA INDUSTRIES LTD vs. FBN PLC (2012) 14 NWLR (PT 1320) 326 at 345. This Court was consequently urged to dismiss the case for being an abuse of process. The cases of TSA INDUSTRIES LTD vs. FBN PLC (supra), KODE vs. YUSSUF (2001) 4 NWLR (PT 703) [no page stated], USMAN vs. BABA (2005) 5 NWLR (PT 917) 113 at 20-21 [sic] and ONYEABUCHI vs.

INEC (2002) 8 NWLR (PT 769) 417 at 441-442 and 444 were relied upon. ​The Appellant’s contention on his second issue is that the lower Court was wrong in entering judgment for the Respondents for a declaration of title without evidence being led to prove the declaration sought by any of the five ways of proving title to land. The cases of OLUBODUN vs. LAWAL (2008) 17 NWLR (PT 1115) 1 at 37 and OBAWOLE vs. COKER (1994) 5 NWLR (PT 345) 416 at 43 [sic] were called in aid.

On the third issue, it was maintained that Order 20 Rule 9 of the High Court of Niger State Civil Procedure Rules, 2012 which the lower Court relied upon to enter judgment, enjoins the lower Court to consider whether the plaintiff is entitled to the relief claimed, before entering judgment in default of defence; more so as the Respondents are to succeed on the strength of their case and not on the weakness of the defence. The cases of OMISORE vs. AREGBESOLA (2015) ALL FWLR (PT 813) 1673 at 1771, BELLO vs. EWEKA (1981) 1 SC [no page stated] and OLUBODUN vs.

LAWAL (supra) were cited in support. ​It was further submitted that there was no proper service of hearing notice for the hearing of the application for judgment in default of defence as the affidavit of service states that the Appellant’s counsel refused service, since he had lost contact with the Appellant. It was opined that the lower Court, in the circumstances, ought to have adjourned the matter pursuant to Order 39 Rules 6 and 7 of the High Court of Niger State Civil Procedure Rules, 2012; so that the Appellant could be properly served.

Still in argument, it was contended that though by Order 7 Rule 2 of the High Court of Niger State Civil Procedure Rules, 2012 service of the motion can be affected on Appellant’s counsel, but that in the circumstances, it was necessary to serve the Appellant personally. Furthermore, that the motion was not served within five days of filing as mandatorily required by Order 39 Rule 1 of the High Court of Niger State Civil Procedure Rules, 2012.

It was therefore asserted that the service was irregular and that the lower Court was wrong to entertain the application without confirming that service was properly effected on the Appellant. The cases of ENE vs. ASIKPO (2010) 10 NWLR (PT 203) [sic] 477 at 515-516 and IBEZIM vs. IBEZIM (2015) ALL FWLR (PT 813) 1783 at 1818-1819 were referred to.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL The Respondents submit that the lower Court had the jurisdiction to entertain the Respondents’ action and that the Court processes were duly served on the Appellant as stipulated in Order 7 Rules 1 and 3 of the High Court of Niger State Civil Procedure Rules, 2012. It was stated that rules of Court are to be followed and obeyed and that the lower Court duly obeyed the rules of Court for the smooth and speedy dispensation of justice vide OYEGUN vs. NZERIBE (2010) 1 SCNJ 127 at 129 ratio 2.

It was asserted that by Order 20 Rule 9 of the High Court of Niger State Civil Procedure Rules, 2012, the lower Court was empowered to enter judgment since the Appellant had failed to file his Statement of Defence. The Respondents’ submission on their second issue is that abuse of process is the improper use of the judicial process which can come in infinite variety and conditions. The case of R-BENKAY vs. CADBURY (2012) 3 SCNJ 150 at 152 ratio 1-3 was referred to.

It was posited that there was no abuse of process in this matter and it was asserted that the case was never pending in three different Courts at the same time as an order was made for a retrial of the case and the pursuit of the retrial was a proper and bona fide use of the judicial process. It was conclusively opined that the Appellant did not prove abuse of process. The case of UKACHUKWU vs. PDP (2013) 12 SCNJ 253 at 256 ratio 12 was relied upon.

APPELLANT’S REPLY ON LAW The Appellant contends in the Reply Brief that the Respondents’ Brief was not a proper brief as it did not answer to the material points raised in the Appellant’s Brief; on account of which the said points are deemed to have been conceded. The cases of AJOMALE vs. YADUAT (NO. 2) (1991) 5 NWLR (PT 191) 266 at 285, ENGINERRING ENTERPRISES OF NIGER CONTRACTOR CO. OF NIG. vs. A-G KADUNA (1987) 2 NWLR (PT 57) 381 at 396 and ATIKU vs. THE STATE (2010) 1 NWLR (PT 1199) 241 at 282 were called in aid.

The Appellant opined that issue number one distilled by the Respondent was incompetent and he proceeded to rehash the submissions that had already been made in the Appellant’s brief. RESOLUTION The Appellant has, inter alia, contended that there was no proper service of hearing notice on him for the date when the Respondents’ application for judgment in default of defence was heard. Now, the service of hearing notice occupies a pre-eminent position in legal proceedings. In SKENCONSULT NIG LTD vs.

UKEY (1981) 1 SC 6 the apex Court held that service of process is to enable a party appear to defend the matter and due appearance by the party is a fundamental condition precedent before the Court can have competence and jurisdiction. This accords with the requirement of fair hearing and the principle of audi alteram partem. See also NWAOSU vs. NWAOSU (2000) 4 NWLR (PT 653) 351 at 359. The service of hearing notice is an essential aspect of our procedural law.

It is a jurisdictional issue and a condition precedent to the competence of a Court to assume jurisdiction and adjudicate over the rights of the litigants in the matter: AKINMOSIN vs. MAKINDE (2012) LPELR (19686) 1 (CA), FIRST BANK vs. UDEOZO (2017) LPELR (43263) 1 at 12-15 and DARMA vs. ECOBANK (2017) 9 NWLR (PT 1571) 480 at 504. ​The law is that a hearing notice is the only means of getting a party to appear in Court. But for proceedings to be invalidated on grounds of non-service of hearing notice, it has to be established that hearing notice was in fact not served on the party.

Is the Respondent correct in the assertion that he was not served hearing notice? We will find out anon. In the exordium, I stated that at the lower Court, learned counsel filed a memorandum of appearance for the Appellant and it was therein stated that: “The Defendant’s address of service shall be through his solicitors, Messrs The Jurist Consult, Advocates & Legal Consultants, No. 150 Bosso Road, Minna, Niger State” (See page 16 of the Records) ​By the memorandum of appearance, Court processes for service on the Appellant were to be served on him through his Counsel.

Let me state that at no time during the pendency of the matter at the lower Court did the said learned counsel withdraw his representation for the Appellant as eminently conveyed in the Memorandum of Appearance.

Order 7 Rule 1 (2) of the Niger State High Court Civil Procedure Rules, 2012, which was the extant Rules at all times material to this action at the lower Court, provides as follows: “(2) Where a party is represented by a Legal Practitioner, service of Court process of which personal service is not required may be made on such legal practitioner or his Law Chambers.” The Respondents’ application for judgment in default of defence as well as hearing notice for the hearing of the said application are not processes which are required to be served on the Appellant personally under the Rules of Court.

Appearance hearing been entered by learned counsel for the Appellant, Court processes could be properly and validly served on the said legal practitioner or his Law Chambers pursuant to the aforesaid Order 7 Rule 1 (2). ​The contention of the Appellant is not that hearing notice was not served on his legal practitioner. The argument is that the legal practitioner refused service on the ground he had lost contact with the Appellant.

So, the legal practitioner was duly notified of the hearing date as undertaken in the Memorandum of Appearance but he declined the service on the ground that he had lost contact with the Appellant. That is not right. The learned counsel remains an officer of Court and the least he could have done in the circumstances is to appear in Court and acquaint the Court with the position and if necessary withdraw representation for the Appellant. The dog-in-the-manger attitude exhibited by learned counsel is disrespectful to the Court.

This is what the lower Court rightly stated of such conduct at page 123 of the Records: “This attitude of Counsel to say the least is wrong. Once counsel has accepted brief of a litigant, he becomes the agent of that client and is bound to properly represent him/her until he/she withdraws by following due process of the law.

This learned counsel has failed to do, it is therefore taken that he has knowledge of this suit and have been dully [sic] served.” In the diacritical circumstances of this matter, the Appellant had due notice of the hearing date for the Respondents’ application for judgment in default of defence. ​The Appellant makes a kerfuffle of the fact that the application for judgment in default of defence was not served on him within five days of filing as stipulated in Order 39 Rule 1 of the Niger State High Court Civil Procedure Rules, 2012.

The Appellant did not state when he was served the application. I have also gone through the Record of Appeal, the holy grail for this appeal, with the finery of a judicial toothcomb and I am unable to see anything on the date the application was served, on the basis of which it can be held that the said Order 39 Rule 1 of the rules of the lower Court was not complied with. It is abecedarian law that the parties and the Court are bound by the Records of Appeal. It is the Records of Appeal that the Court will rely upon in the determination of an appeal.

The Court will not depart from the Records of Appeal and any extraneous facts and submissions which are not borne out by the Records would be feckless and the Court cannot rely or act on the same: GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374, NNALIMUO vs. ELODUMUO (2018) LPELR (43898) 1 at 22, GWAGWALADA SPECIALIST HOSPITAL vs. KWADO (2022) LPELR (57618) 1 at 12-13 and ERIAYE vs. EREMIENYO (2022) LPELR (58095) 1 at 20-21.

Accordingly, I will not join the Appellant’s counsel in the conjecture which is not borne out by the Records that the motion for judgment in default of defence was not served in the manner stipulated by Order 39 Rule 1 of the Niger State High Court Civil Procedure Rules, 2012. The Appellant forcefully argued that the Respondents’ action was an abuse of process of Court on account of multiplicity of actions. 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 (supra) at 188 Karibi-Whyte, JSC stated: “The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. It is one common feature is the improper use of the judicial process by a party in litigation to interfere with the due 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; OYEGBOLA vs. ESSO WEST AFRICA 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) 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 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.” It is hornbook law that instituting several actions on the same subject matter against the same opponent on the same issues even when there is a right to bring the action is an abuse of process of Court: OKORODUDU vs. OKOROMADU (1977) 3 SC 21 and OYEGBOLA vs. ESSO WEST AFRICA INC. (1966) 1 ALL NLR 170. 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.

While it is inherent in the power of a Court to put an end to an action which is an abuse of process, the Court must exercise its power judicially and judiciously and with great circumspection: FASAKIN FOODS NIG CO. LTD vs. SHOSANYA (2003) 17 NWLR (PT 849) 237 at 247-248. The Appellant’s contention that the Respondents’ action is an abuse of process is based on multiplicity of actions. Let me restate that evidence was not adduced before the lower Court so the previous actions from which the parties, issues and subject matter could be gleaned are not in evidence.

I am not in oblivescence of the averments in the Respondents’ Statement of Claim which the Appellant referred to. It is rudimentary law that pleaded facts do not constitute evidence: AJUWON vs. AKANNI (1993) LPELR (311) 1 at 20, ELEGUSHI vs. OSENI (2005) LPELR (1111) 1 at 28 and EYIGEBE vs. IYAJI (2013) LPELR (20522) 1 at 16. Accordingly, in the absence of evidence establishing the multiplicity of actions on the same subject matter against the same opponent on the same issues, conventional wisdom dictates circumspection in holding that this matter is an abuse of process.

I am therefore unable to agree with the Appellant, in the absence of relevant and appropriate evidence, that the Respondents’ action is an abuse of Court process. I have already set out the reliefs claimed by the Respondents. The reliefs are for declaration of title to land, perpetual injunction and damages for trespass. The Respondents did not adduce any evidence to establish their entitlement to the declaration sought. The lower Court entered judgment in their favour for default by the Appellant in filing his Statement of Defence.

In granting the Respondents’ application and entering judgment for them, the lower Court stated as follows at page 123 of the Records: “Be that as it may, there is failure on the part of defendant to file defence to this suit and must be taken he has no defence to it. By virtue of Order 20 Rule 9 thereof the application of applicant to enter final judgment I find is well grounded in law and meritorious. It is thus granted as prayed”.

Order 20 Rule 9 of the Niger State High Court Civil Procedure Rules, 2012 which the lower Court applied in entering final judgment for the Respondents stipulates as follows: “9.

In all actions other than those in the preceding rules of this Order, if the defendant makes default in filing a defence, the plaintiff may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the plaintiff to be entitled to.” ​The above pericope from the judgment of the lower Court is lucent that the lower Court did not consider whether the Respondents were entitled to judgment for the reliefs claimed in their Statement of Claim as enjoined on it to do under the aforesaid Order 20 Rule 9.

The lower Court proceeded on the premise that there having been a default in filing a statement of defence, it would be slavishly followed by judgment in default of defence without any consideration to whether the reliefs claimed can be granted without evidence being adduced. Let me iterate that the Respondents claimed declaration of title to land.

The law is settled beyond peradventure that declarations of right are not made either on mere admission or in default of defence without hearing appropriate evidence and being satisfied that the evidence established the entitlement to the declaration sought. See BELLO vs. EWEKA (1981) 1 SC 101, OKEDARE vs. ADEBARA (1994) 6 NWLR (PT 349) 157 at 185, AKANINWO vs. NSIRIM (2008) LPELR (321) 1 at 20-21 and AIYEOLA vs. PEDRO (2014) LPELR (22915) 1 at 38-39. In the words of Obaseki, JSC in FABUNMI vs.

AGBE (1985) 1 NWLR (PT 2) 299 at 318: “A claim for declaration of title is not established by admissions as the plaintiff must satisfy the Court by credible evidence that he is entitled to the declaration. The Court does not grant declaration on admission of parties.

It has to be satisfied that the plaintiff owns the title clamed.” On the settled state of the law, the lower Court erred in law when it entered judgment for the Respondents without hearing appropriate evidence and being satisfied that the Respondents were entitled to the declaration they sought. ​The reliefs of perpetual injunction and general damages claimed by the Respondents and granted by the lower Court are like leeches as their success is dependent on the success of the principal relief for declaration of title.

Given the fact that the relief for declaration of title was wrongly granted, the said other reliefs would equally fail. The legal principle being sublato principali tollitur adjunctum (Co. Litt 389) [the principal being taken away, its adjunct is also taken away]: ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 269, SIMEON vs. COLLEGE OF EDUCATION, EKIADOLOR (2014) LPELR (23320) 1 at 39 and OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 32. The concatenation and conflating of the foregoing is that this appeal succeeds.

The judgment of the lower Court delivered on 25th March 2013 is hereby set aside. The case is hereby remitted to the lower Court for venire de novo. The Chief Judge of the High Court of Niger State is to assign the matter to a Judge for expeditious hearing and determination. The parties are to bear their respective costs of this appeal.

PETER OLABISI IGE, J.C.A.: I have read in advance, the leading judgment of my learned brother, OGAKWU, JCA. I agree with his reasoning and conclusion that the appeal succeeds. The judgment of the lower Court delivered on 25th March, 2013 is hereby set aside. The Appellant’s case shall be assigned to another Judge by the Chief Judge of the High Court of Niger State for expeditious hearing and determination of the suit. There shall be no Order as to costs.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. ​I equally agree with the reasoning and the conclusion that the appeal succeeds. The judgment of the lower Court delivered on 25th March 2013 is hereby set aside. I abide by the consequential orders therein.