CORAM

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Elfrieda Oluwayemisi Williams-Dawodu JCA

Ugochukwu Anthony Ogakwu JCA

Jamilu Yammama Tukur JSC

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PARTIES

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CITISCAPE INTEGRATED GLOBAL LIMITED

APPELLANTS 

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OMOLARA ESTHER BELLO (Trading Under The Name And Style PROJECTS CONSULTANTS & DEVELOPERS (PCD) ASSOCIATES)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COMPANY, CONSTITUTIONAL LAW, EVIDENCE, LAND, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The material facts of the case that led to this appeal is that the Respondent had filed an action via which he sued the Appellant, seeking in the main declaration of title over land. In reaction, the Appellant brought a Notice of Preliminary Objection. The Appellant however claimed that the same case had been judicially decided between the parties in Suit No. FCT/HC/CV/439/2010 before his Lordship Hon. Justice M.M. of High Court No.26 FCT Abuja when the suit was dismissed on the ground that the Respondent had no legal personality. The Appellant claimed that the decision was still subsisting since no appeal had been filed by the plaintiff (Respondent) in that matter. The preliminary objection was heard and, in a ruling, the lower Court held that the Respondent has a legal personality to sue and consequently struck out the preliminary objection. Dissatisfied with the decision of the lower Court, the Appellant made the instant appeal.

 

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HELD

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Appeal struck out

 

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ISSUES

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Whether the lower Court has jurisdiction to hear this matter already struck out by a Court of co-ordinate jurisdiction for want of legal personality?

Whether Suit No. FCT/HC/CV/0204 is caught up by the doctrine of res judicata and therefore an abuse of Court process?

 

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RATIONES DECIDENDI

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RIGHT TO APPEAL – EXERCISE OF THE RIGHT TO APPEAL

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There is no gainsaying the fact that the right to appeal against a decision of a Court, which a party is dissatisfied with, is a constitutional cum statutory right which is not easily truncated except in line with the provisions of statutes. It must however be pointed out that this right may only be exercised as spelt out in the relevant statutes and failure to do so may lead to an inability to exercise the right.

See: SKYE BANK v. IWU (2017) LPELR-42595(SC); AP PLC v. ADENIYI & ORS (2011) LPELR- 3642(CA); and TIJANI & ANOR v. AYORINDE (2017) LPELR-50571(CA). ​This Court recently restated the applicable principles of law governing the right to appeal in the case of AEPB v. OJEHOMON (2022) LPELR-58033(CA) (Pp 11-12 Paras A – B) per Stephen Jonah Adah JCA thus:

“Let me say in clear terms that in Nigeria, the right of appeal is a constitutional right but the right is not absolute. See Yaki (Rtd.) & Anor v. Abubakar Bagudu & Ors. (2015) LPELR-25721 (SC). The exercise of the right of appeal is circumscribed and limited by Rules of Court which are meant to be obeyed. In the case of Kente v. Ishaku & Ors., (2017) LPELR-42077 (SC), the Supreme Court held that” The Court cannot exercise appellate jurisdiction beyond what and how Section 240, 241 and 243 of the 1999 Constitution as amended cumulatively confer on it.

Appellant’s right of appeal, as donated by the Constitution is not at large. By Section 241 (1)(a) of the Constitution, it is only when he appeals against the specific decision of the trial Court he is aggrieved with that the lower Court’s jurisdiction to entertain the appeal avails him. The lower Court’s refusal to assume jurisdiction when it has none does not amount to undue and untoward inclination at doing technical justice. The Court’s primary function is to dispense justice according to law". This position as in Kente v. Ishaku (supra) is very apt because it is an elementary principle of law that the right to appeal is constitutional. However, it is also the law that the exercise of that right must be within bounds and in accordance with the law. A right of appeal, I must emphasise, cannot be exercised without compliance with the law granting the right or the law regulating the exercise of the right. See Ekunola v. CBN & Anor (2013) 15 NWLR (Pt. 1377) 224.” Part of the law governing how the right of appeal is exercised is the trite rule of law to the effect that appeals against interlocutory decisions require leave of Court either that of the lower Court or this Court. – Per J. Y. Tukur, JCA

 

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JURISDICTION – WHETHER THE DECISION APPEALED IS FINAL OR INTERLOCUTORY

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Where leave of Court is required and such is not obtained, such goes to the jurisdiction of the Court of Appeal. This is because appeal is statutory and not inherent. Thus it will not be a question of irregularity which can be rectified. Ogbechie v. Onochie (1986). Thus, if the decision of the lower Court is taken to be interlocutory, it means this Court does not have jurisdiction to hear this appeal and the appeal must be struck out for want of jurisdiction.

Interlocutory decisions do not determine the rights of the parties finally as regards the subject matter which brought the parties to Court. Final decisions on the other hand determines the rights and issues between the parties finally. The test was laid down by the Supreme Court in Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924, they are: – The nature of the order that was made; or – The nature of the application made to the Court If the order finally determines the rights and issues between the parties leaving nothing to be decided by the Court then it is final decision. This does not include ancillary proceedings like stay of execution, enforcement of judgment. In Ebokam v. Ekwenibe (1999) 10 NWLR (pt. 622) 242, the Supreme Court held that where the decisions of the Court under consideration clearly and wholly dispose of all the rights of the parties in the case, that decision is final. But where the decision only disposes of an issue or issues in the case, leaving the parties to go back to claim the other rights in the Court, then that decision is interlocutory and to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order. Where a Court rules upon a preliminary objection that it has jurisdiction, that is an interlocutory decision. Where the Court however rules that it has no jurisdiction this would be a final decision, as no rights of the parties can be determined by the Court again. The Court in that instance would either be striking or dismissing the action. See: Western Steel Works Ltd v. Iron and Steel Workers Union of Nigeria, 1 NWLR (Pt. 49) 284 (1987). – Per J. Y. Tukur, JCA

 

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JURISDICTION – THE IMPORTANCE OF JURISDICTION

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The fundamental nature of jurisdiction to any proceeding cannot be overemphasized. Several adjectives such as “lifeblood”, “spinal cord” “basic” have been used to describe it, all pointing to the incontrovertible fact that it is crucial for the successful execution of any adjudicatory process. It is indeed the authority of the Court to determine the case brought before it and any matter conducted in the absence of jurisdiction is nothing more than a waste of time. The Supreme Court in the case of ENUKORA v. FRN (2018) LPELR-43822(SC) Per MUHAMMAD, J.S.C. (Pp. 4-5, Paras. D-B) restated the foregoing settled principle of law thus:

“It is settled that the issue of jurisdiction is fundamental as it touches on the competence of the Court. Jurisdiction remains a threshold issue. Being the lifewire of any determination by the Court, it should be considered and determined first before anything else since no matter how well considered the Court's decision is, it will come to naught once the Court lacks the competence to try and determine the issue before it. In the case at hand, the lower Court’s judgment appealed against would come to nothing once the trial Court which decision the former affirmed is shown to have lacked the competence to try and determine the charge against the appellant. As it has always been, you can only add something unto something. See Madukolu v. Nkemdilim (1962) 1 ALL NLR 587, Skenconsult v. Ukey (1981) 11 SC 6 and AG Lagos State v. Dosunmu (1989) 3 NWLR (Pt III) 552”. See: EFCC v. THOMAS (2018) LPELR-45547(CA); ABRAHAM v. FRN (2018) LPELR-44136(CA); and ADESEUN v. FRN (2018) LPELR-43664(CA). – Per J. Y. Tukur, JCA

 

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FUNCTUS OFFICIO – MEANING OF FUNCTUS OFFICIO

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It is a general principle of law that a Court after delivering its judgment, becomes functus officio and then will lack the jurisdiction to take any further step with regards to the matter it had decided. The Supreme Court in the case of INTEGRATED REALTY LTD v. ODOFIN & ORS (2017) LPELR- 48358(SC), stated the principle of law thus:

“Functus officio is Latin for "having performed his or her task", and refers to one who has exercised his or her authority and brought it to an end in a particular case – Longman Dictionary of Law, 7th Ed. The position of the law is that once the Court has delivered its decision on a matter, it becomes functus officio with regard thereto. This is so, because a Court cannot sit on appeal on its own decisions, having not been vested with power to do so – See Olowu v. Abolore (supra), at pages 270-271, Paragraphs H-A wherein this Court, per Karibi-Whyte, JSC, observed that -“The constitutional and statutory jurisdiction of the Court of Appeal is to hear appeals from lower Courts. It cannot hear appeals from its own decisions. Thus, having finally decided a case before it, it becomes functus officio as to that case". Thus, once a Court has decided a matter, it ceases to be seized of it, and cannot re-open it, except in certain circumstances, of course”.

See: KASMAL PROPERTIES LTD v. ADENIRAN ADEDOKUN VENTURES (NIG) LTD & ORS (2019) LPELR-47639(CA); OKADA WONDERLAND LTD v. OMOKARO (2021) LPELR-54596(CA). There are however instances where a Court can set aside its own judgment or decision, where such is provided for by its rules, with regards to decisions that are not on merit. This is an exception to the general rule that once a Court has pronounced its decision on a matter, it becomes functus officio. See: DAMAC STAR PROPERTIES LLC v. PROFITEL LTD & ANOR (2020) LPELR-50699(CA). – Per J. Y. Tukur, JCA

 

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JURISDICTION – AN ORDER STRIKING OUT A MATTER AND ITS EFFECT ON JURISDICTION

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With regards to this appeal, the lower Court was not functus officio with regards to the new suit filed before it, as the previous suit was not dismissed but was struck out for want of jurisdiction by a Court of coordinate jurisdiction, thus it was not decided on the merits, but struck out by the lower Court for failure to meet with all the requirements for validly bringing a matter before the lower Court. A party whose matter is struck may either apply for re-listing or bring a fresh suit. Thus the lower Court was not robbed of jurisdiction on the basis of being functus officio. – Per J. Y. Tukur, JCA

 

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RES JUDICATA – MEANING OF RES JUDICATA

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Res judicata is a well settled principle of law to the effect that where a competent Court of law with jurisdiction has made a final decision with regards to a claim or subject matter, the matter is settled and cannot be disturbed again by the parties or their privies. In line with the foregoing, the Supreme Court in the case of AMINU & ORS v. HASSAN & ORS (2014) LPELR- 22008(SC) (P. 27, paras. A-D) Per Fabiyi, JSC, held thus: “The appellants attempted to rely on Exhibit E as constituting res judicata which has been defined as a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Rule that a final judgment rendered by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and so to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. See Matchett v. Rose 36 III App 3d 638, 344, NE 2d 770, 779 – A matter once judicially decided is finally decided – To be applicable, requires identity in thing sued for; identity of cause of action, persons and parties to the action (Blacks Law Dictionary Sixth Edition 1305-6).” See:ZI v. CHUWAK (2019) LPELR-48004(CA); KAMBAZA v. HAKIMI & ANOR (2019) LPELR- 48139(CA); and AG OF NASARAWA STATE v. AG OF PLATEAU STATE (2012) LPELR-9730(SC). – Per J. Y. Tukur, JCA

 

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ESTOPPEL BY RECORD – CONDITIONS TO BE FULFILLED TO ACTIVATE ESTOPPEL BY RECORD

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There are four conditions to be fulfilled before estoppels by record can avail a party:

1. Parties or their privies are the same in the present suit and previous suit.

2. Subject matter and issues are the same.

3. The previous action was determined by a Court of competent jurisdiction

4. The previous decision was a final decision of that Court. – Per J. Y. Tukur, JCA

 

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ABUSE OF COURT PROCESS – MEANING/DESCRIPTION OF ABUSE OF COURT PROCESS

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The law on abuse of Court process is clear and to the effect that abuse of Court process refers to a variety of situations, which may not be fully enumerated or limited, but which always involve the misuse of the process of Court for a purpose that is malafide, aimed at annoying or disturbing the party against whom it is used. The Apex Court gave an wholesome description of what abuse of Court process is in the case of OYEYEMI & ORS v. OWOEYE & ANOR (2017) LPELR- 41903(SC), (Pp, 19-20, Paras. E-B), where per Bage JSC, it held thus:

“This Court has succinctly enunciated in NTUKS v. NPA (2007) 13 NWLR (Pt. 1051) page 392 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 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”. See: AIGBEDION v. INCORPORATED TRUSTEES OF ASSEMBLIES OF GOD OF NIGERIA & ANOR (2022) LPELR-58983(CA); AMAKIRI v. A.G., BAYELSA STATE (2021) LPELR-56100(CA); and ONWUAMADIKE v. STATE OF LAGOS & ANOR (2019) LPELR-48987(CA).

The Apex Court in the case of BUKOYE & ORS v. ADEYEMO & ORS (2016) LPELR-40852(SC) (Pp 11 – 13 Paras A – A) per AMIRU SANUSI, JSC restated 5 common instances of abuse of Court process thus:

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

(b) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.

(c) Where two similar processes are used in respect of the exercise of the same right for example, a cross-appeal and a Respondent notice

(d) 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 Court below.

(e) Where there is no iota of law supporting a Court process or where it is predicated on frivolity or recklessness. See: OGUNTAYO v. ADELAJA & ORS (2009) LPELR-2353(SC); and GPN & ORS v. INEC (2022) LPELR-57327(CA).

​The most common form of abuse of Court process is multiplicity of actions, which is the filing of more than one action in respect of the same relief and between the same parties, and a careful examination of the case at trial reveals that it falls squarely within the parameters of a suit that can be said to constitute an abuse of Court process based on multiplicity of actions. – Per J. Y. Tukur, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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

2. FCT High Court (Civil Procedure) Rules 2018

 

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