CORAM

---

Jimi Olukayode Bada JCA

Abubakar Sadiq Umar JCA

Muhammad Ibrahim Sirajo JCA

---

PARTIES

---

CHIEF EMMAB UMEH

APPELLANTS 

---

1. MR EMMANUEL IKEHI

2. MR SUNDAY OTUALI OMOSE

RESPONDENTS 

---

AREA(S) OF LAW

---

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE, PROPERTY LAW

 

 

---

SUMMARY OF FACTS

The Respondents in this appeal were Claimants in Suit No. M/784/2012 which was an initial suit. At all material times, prior to the institution of the initial suit, the parties herein were business neighbours in the same Central Business District area of Lagos State; and as gleaned from the Record before this Court, they were all into property management and consultancy services. While the Appellant was a lessee of the property at No. 23/26, Nnamdi Azikwe Street, Lagos, the Respondents, at the same time, were holders of a 5-year active lease on the property situate at No. 9, Nnamdi Azikwe Street, Lagos, the said lease was to expire in 2016. Parties are ad idem that the two (2) named properties were contiguous to each other.

The problem started when the Appellant reportedly constructed some number of stalls in the space adjoining the two buildings, which the Respondents argued, forms part of the property on which they were holding an active 5-year lease. However, the Appellant’s defence to the Respondents’ case rests on the fact that the stalls were within the premises of the property on 23/26 Nnamdi Azikwe Street, Lagos, of his leasehold.

The lower Court delivered its decision in the initial suit and the same is the subject of Appeal No. CA/L/934/2014, said to be pending before this Court as at May, 2015 when the Suit No: LD/503GCMW/2015 that birthed the instant appeal, was filed.

The latter suit was commenced by the Respondent who, as the Claimants in the High Court of Lagos State, claimed against the Appellant, who was the Defendant the sum of N33,750,000.00 being the rents illegally collected by the Defendant for the period of 3 years and prayed for an order of perpetual injunction restraining the Defendant from further collecting rents from No. 9 Nnamdi Azik we Street.

The Appellant raised a Preliminary Objection seeking the dismissal of the suit on the grounds that the subject matter of this suit is also the subject matter of another suit between the same parties with Suit No. M/784/2012 and hence the instant Suit No. LD/503GCMW/15 is an abuse of judicial process.

The lower Court heard the application and dismissed the Appellants objection in its entirety. Aggrieved with the decision of the lower Court, the Appellant approached this Court in order to ventilate his grievances by lodging this appeal.

 

---

HELD

---

Appeal allowed

 

---

ISSUES

---

1. Whether the instant suit number LD/503GCMW/2015 amounts to an abuse of judicial process considering the facts and circumstances that surrounds it?

2. Whether the Learned Trial Judge was right not to have considered the issue of law raised by the Appellant with respect to paragraphs of the Counter affidavit of the Respondents’ which offend Section 115 (2) of the Evidence Act 2011?

 

 

---

RATIONES DECIDENDI

---

REPLY BRIEF – THE PURPOSE OF A REPLY BRIEF

---

In his Reply Brief, the Appellant expatiated further on two issues: the issue of abuse of Court process and raising issue suo motu. I will not go into the detailed argument as that is not the purpose of a Reply Brief as envisaged by Order 9 Rule 5 (1) of the Court of Appeal Rules, 2021, which provides:

“The Appellant may also, if necessary, within fourteen (14) days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent, a reply brief which shall deal with all new points and points of preliminary objection or any challenge to the appeal raised and argued in the Respondent’s Brief.”

The essence of a Reply Brief is not to reopen arguments already canvassed. It is to reply to new issues that have arisen in the Respondent’s Brief of Argument. It is not a forum for the Appellant to strengthen his main Brief by repeating or expanding the arguments contained therein. See Komolafe vs. Federal Republic of Nigeria (2018) LPELR-44496 (SC); Oguanuhu & Ors vs. Chiegboka (2013) LPELR-19980 (SC); Idagu vs. State (2018) LPELR-44343 (SC); Zubairu vs. State (2015) 16 NWLR (Pt.1486) 504; Onwudiwe VS. Federal Republic of Nigeria (2006) 10 NWLR (Pt.988) 382.  – Per M. I. Sirajo, JCA

 

---

JURISDICTION – THE MEANING AND ESSENCE/IMPORTANCE OF JURISDICTION – CONDITIONS REQUIRED TO VEST JURISDICTION ON A COURT

---

It is clear to me, that the issue bordering on a Court’s jurisdictional competence, dated back to the oft-cited locus classicus case of Madukolu vs. Nkemdilim (1962) 1 All NLR 587. It has been variously described as the threshold of the power of a Court to adjudicate over a matter submitted before it. It gives life to a Court to hear and determine any question submitted before it for determination, in that any exercise of adjudicatory power by a Court not seised with the requisite jurisdictional competence, would amount to an exercise in futility. See Madukolu vs. Nkemdilim, Obasanjo V Yusuf (2004) All FWLR (Pt.213) 1884; FRN vs. Solomon (2018) All FWLR (Pt.1095) 1116-1117.

For a Court to be seised with such competence to validly hear and determine any issue submitted to it, certain condition precedents must exist, as spelt out in the celebrated case of Madukolu vs. Nkemdilim (supra), thus; A Court is competent when;

1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another

2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction

3. The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent in the exercise of jurisdiction. – Per M. I. Sirajo, JCA

 

 

---

ABUSE OF COURT PROCESS – MEANING OF ABUSE OF COURT PROCESS AND SOME INSTANCES THAT AMOUNT TO ABUSE OF COURT PROCESS

---

It is settled law that an abuse of Court process denotes the improper use of the legal process, where a party improperly deploys the judicial machinery to the annoyance, irritation, and aggravation of the opposing party with the combined effect of grinding the wheel of the efficient and effectual administration of justice delivery system. It is generally applied to a proceeding, devoid of bona fide and therefore frivolous, vexatious, and oppressive, usually initiated in bad faith to gain an undue advantage at the expense of an adversary. See Adeniyi vs. FRN (2012) 1 NWLR (Pt.1281) 284; Edjerode vs. Ikine (2001) 18 NWLR (Pt.745) 446 It is important to note that the exercise, by a person, of the right to use judicial process simpliciter, would in no way amount to abuse, but the manner and/or purpose for which such right is exercised. See Okorocha vs. PDP (2014) 7 NWLR (Pt.1406) 213; Nyah vs. Noah (2007) 4 NWLR (Pt.1024) 230.

Instances tending to an abuse of Court process, as laid down by the Supreme Court, include the following;

i. Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues or multiplicity of actions on the same subject matter between the same parties even where there exists a right to begin the action;

ii. Instituting different actions between the same parties simultaneously in different Courts, even though on different grounds;

iii. Where two similar processes are used in respect of the exercise of the same right, for example, a cross-appeal and a respondent’s notice.

iv. Where an application for adjournment is sought by a party to an action to bring an application to Court for leave to raise issues of facts already decided by the lower Court.

v. Where there is no law supporting a Court process or where it is presumed on frivolity or recklessness.

vi. Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.

vii. Where an applicant files an application at the trial Court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal, when the applicant’s application has the effect of over-reaching the respondent’s application.

SeeR. Benkay Nig Ltd vs. Cadbury (supra). – Per M. I. Sirajo, JCA

 

---

CONTINUING TRESPASS – MEANING OF CONTINUING TRESPASS CONDUCT OF COURTS WHEN A CASE OF TRESPASS IS MADE OUT

---

The Supreme Court in its decision in the case of Chukwuma vs. Ifeloye (2008) 18 NWLR (Pt.1118) 204 @ 244-245, on what constitutes continuing trespass to land and remedies available held that;

It is a continuing tort of trespass for a person to remain in another’s land without that other’s authority or consent, so that barring the defences properly raised and sustained which defeats the right of the owner of such land to complain of the continuing trespass the land owner is always entitled to protection as appropriate and the protection is by way of an order of injunction. Even where an injunction was not sought, once a Court has found for trespass, it has the jurisdiction to grant the equitable remedy of injunction. In that circumstance, the order of injunction can be made as a consequential order and it will not amount to a Court granting to a party what he did not claim.

Similarly for trespass, there must be an award of damages.(Underlining for emphasis).

See the cases of Onagoruwa vs. Akinremi (2001) 13 NWLR (Pt. 729) 38; Adepoju vs. Oke (1999) 3 NWLR (Pt. 594) 154; Motunwase vs. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Okupe vs. F.B.I.R. (1974) 1 All NLR 314; Garba vs. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550; Ilona vs. Idakwo (2003) 11 NWLR (Pt. 830) 53; Olorunfemi vs. Asho (1999) 1 NWLR (Pt. 585) 1.

It is settled that whenever a case of trespass is made out, consequential reliefs, specifically remedy of injunction and damages are normally granted.  – Per M. I. Sirajo, JCA

 

---

COURTS – CONDUCT OF COURT OF APPEAL IN PASSING JUDGMENTS

---

The judgment of the Court of Appeal can go either way. This is why the Courts act on the principle that a judgment is binding until it is set aside on appeal. See OJO V. INEC (2008) LPELR 4705 (CA). – Per M. I. Sirajo, JCA

 

---

STATUTE BARRED – THE FATE OF A PARTY WHO ALLOWS HIS CLAIM TO BECOME STATUTE BARRED

---

While the Defendant has a remedy in law to recover the sum that may be awarded to the Claimants if he succeeds on appeal, the law provides no remedy for a party that consciously allow his claim to become statute barred.

This is standing the law on its head. The claim for trespass and/or possession is tied to the claim for rent or mesne profits. – Per M. I. Sirajo, JCA

 

---

COURTS – CONDUCT OF COURTS WHEN ISSUES ARE RAISED SUO MOTU

---

I equally hold the view that the learned trial Judge ought to have allowed the parties to address him on the issue raised suo motu by the lower Court that the limitation law would have caught up with the Respondents if they should wait for the outcome of the decision of the Court of Appeal in Appeal No. CA/L/932/14, filed by the Appellant. Failure by the lower Court to avail the parties the opportunity to address it on that issue is fatal to the case of the Respondent, as it amounted to denial of fair hearing to the Appellant. See Jev vs lyortyom & Ors (2014) 23000 (SC); Olaolu vs F.R.N. (2015) LPELR-24778 (SC); Ominiyi vs. Aiabi (2015) LPELR-24399 (SC); Odedo vs. PDP & Ors (2015) LPELR-24738 (SC); The State vs. Kapine & Anor (2019) LPELR-49511 (SC); Idachaba vs. The University of Agriculture, Makurdi & Ors (2021) LPELR-53081 (SC). – Per M. I. Sirajo, JCA

 

---

LIMITATION LAW – THE OPERATION OF LIMITATION LAW WHEN PARTIES ARE IN COURT

---

…the law is settled that the operation of limitation law is stayed while parties are in Court over the cause of action. I find the authority in the case of Sifax Nig Ltd vs. Migfo Nig. Ltd & Anor (supra), also reported as (2018) LPELR-49735 (SC), cited by the Appellant’s counsel as apt in this regard.  – Per M. I. Sirajo, JCA

 

---

COURTS – DUTY OF COURTS TO DECIDE ON ALL ISSUES SUBITTED FOR DETERMINATION

---

The law is that a Court of law, particularly the lower Court and this Court, has a statutory duty to consider and decide on all issues raised and submitted to it for determination. The essence of considering and determining all issues raised before a Court is to accord with the principle of fair hearing as enshrined in our Constitution and to avoid the breach of a complaining party’s right to fair hearing. It will amount to a serious lapse in the performance of his/her judicial duty for a Judge to shy away from determining all issues properly raised before him/her, as done by the trial Judge in the case now on appeal. In the case of Brawal Shipping (Nig.) Ltd vs. F.I. Nwadike Co. Ltd & Anor (2000) LPELR-802 (SC), Uwaifo, JSC, held as follows:

“It is no longer in doubt that this Court demands of, and admonishes the lower Courts to pronounce, as a general rule, on all issues properly placed before them for consideration, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.”

See also Owodunni vs. Registered Trustees of Celestial Church of Christ & Ors  (2000) LPELR-2852 (SC); Samba Petroleum Ltd vs. U.B.A. PLC (2010) 6 NWLR 530; Dingyadi vs. INEC (2010) LPELR- 40142 (SC); Sule vs. State (2009) LPELR-3125(SC). A deliberate failure by a Court to consider all issues raised before it amounts to a miscarriage of justice and a failure to perform a statutory duty. See Ovunwo vs. Woko (2011) LPELR-2841 (SC). – Per M. I. Sirajo, JCA

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act 2011

3. Court of Appeal Rules, 2021

4. Lagos State High Court (Civil Procedure) Rules, 2019

 

CLICK HERE TO READ FULL JUDGEMENT