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.