May 9, 2025
Legalpedia Citation: (2014) Legalpedia (CA) 67151 In the Court of Appeal Fri Jul 18, 2014 Suit Number: CA/L/275/2012 CORAM HON. JUSTICE. R. N. PEMU, JUSTICE COURT OF […]
CORAM
HON. JUSTICE. R. N. PEMU, JUSTICE COURT OF APPEAL
ELIAS, JUSTICE SUPREME COURT
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE JUSTICE, COURT OF APPEAL
NWALI SYLVESTER NGWUTA JUSTICE, COURT OF APPEAL
PARTIES
COUNCIL OF LEGAL EDUCATION APPELLANTS
1. HAJIA BASIRAT MOJISOLA DANGE
2. MR. OLUYINKA ABAYOMI OLALEKAN AWOLARU (For themselves and on behalf of the family of Madam Oyinkan Moyeni)
3. MR. BASIL CHRISTOS ECONOMIDES
4. MR. ELIAS BADIH KHALIFE ATTORNEY GENERAL OF THE FEDERATION
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Claimants claim against the Defendants was for various declarative orders and an order for possession of a property known as 213A, Igbosere Road, Lagos (Law School Building).The Appellant were initially not parties to the suit but upon being aware of the suit, they applied to be joined after the matter has progressed and was fixed for ruling. The application was dismissed by the trial Court. Dissatisfied with the ruling, the Appellant appealed against the ruling of the trial court. While the notice of appeal was pending, though appeal not entered, the Appellant changed counsel who then filed a motion seeking to set aside the ruling and judgment of the trial Court, join the Appellant as a party and dismiss the suit. The 1st & 2nd Respondents contended that the motion was an abuse of Court process. The Court upheld the objection, and dismissed the motion on notice. Dissatisfied with the ruling the Appellant filed this appeal with leave of court.
HELD
Appeal allowed
ISSUES
Whether the Learned trial judge was right when she held that the reliefs in the Notice of Appeal dated 4th October, 2011 in which the Appellant prayed the Court of Appeal to set aside the decision of the trial judge delivered on 20th September, 2011, grant the Appellant’s application for Joinder and dismiss the Suit of the 1st and 2nd Respondents are the same with that in the subsequent application of the Appellant dated 18th October, 2011 to set aside the Ruling/Judgment of the Court delivered on the 20th September, 2011 (Ground 1)Whether the motion on Notice dated 18th October, 2011 to set aside the Ruling/Judgement of the Lower Court delivered on the 20th September , 2011 on the ground that the Lower Court lacks Jurisdiction on the matter and that the Ruling/Judgement is a nullity, filed after the Notice of Appeal dated 4th October, 2011 praying the Court of Appeal to set aside the decisions of the Court delivered on the 20th September, 2011 and dismiss the suit of Claimant/Respondent is an abuse of the process of the Court.Did the Learned trial Judge misdirect herself in her application of Supreme Court Cases of LABARAN V KALSHINGI (2006) ALL FWLR (Pt 292) 65 and AFRICAN RE. CORP V J. D. P. CONSTRUCTION (NIG) LTD (2003) 13 NWLR (Pt 838) 609 to this matter in the light of the Supreme Court decision in MOHAMMED V HUSSEINI (1998) 14 NWLR (Pt 584) 108 (Grounds 3 & 4)
RATIONES DECIDENDI
ABUSE OF COURT PROCESS – A FRESH ACTION BETWEEN THE SAME PARTIES, AND ON THE SAME SUBJECT MATTER WITHOUT A DISPOSAL OF THE PREVIOUS SUIT CONSTITUTES ABUSE OF PROCESS OF COURT
“It is therefore not the existence or pendency of the previous suit that causes the problem, rather it is the institution of a fresh action between the same parties, and on the same subject matter when the previous suit has not been disposed of, that constitutes an abuse of process of Court – Minister Of Works V.Tomas (Nig.) Ltd (2002) 2 NWLR Pt.725 @ 740@ 77”. PER PEMU JCA.
ABUSE OF COURT PROCESS – MEANING OF ABUSE OF COURT PROCESS
“Generally, it means the abuse of legal procedure or the improper use of legal process. Multiplicity of actions on the same subject matter against the same opponent and on same issues amounts to abuse of Court process”. PER NIMPAR JCA
ABUSE OF COURT PROCESS -WHETHER FILING OF TWO MOTIONS ON NOTICE AT THE SAME TIME SEEKING THE SAME RELIEF AMOUNTS TO COMMENCEMENT OF TWO CONCURRENT ACTIONS
“Furthermore the court in the case of KABO AIR LTD V INCO BEV LTD (2003) 6 NWLR (Pt 816) 323 held that the filing of two motions on notice at the same time seeking the same relief does not amount to commencement of two concurrent actions. It therefore implies that there must have been a suit pending before the commencement of another to amount to commencing two actions which can be caught by abuse of court process”. PER NIMPAR JCA
ABUSE OF COURT PROCESS -WHEN WILL ABUSE OF COURT PROCESS ARISE?
“Abuse of Court process will only arise if, inter alia, there is multiplicity of suits between the same parties with regard to the same subject matter.” PER PEMU JCA.
NOTICE OF APPEAL – REQUIREMENT FOR FILING A NOTICE OF APPEAL BY AN INTERESTED PARTY
“It is trite to point out too that at the time the notice of appeal was filed, it was by an interested party and not a party already in the suit. It is a notice filed by an interloper because not being a party it could not file a valid notice of appeal as of right. It must seek leave of court as constitutionally required”. PER NIMPAR JCA
ABUSE OF COURT PROCESS – WHAT AMOUNTS TO ABUSE OF PROCESS
“Furthermore, to amount to abuse of process the employment of the judicial process should be to the annoyance and irritation of the other party, see Saraki V Kotoye (1992) 9 NWLR (Pt246) 156 at 188; Okafor V A. G. Anambra State (1991) 6 NWLR (Pt200) 659 at 681”. PER NIMPAR JCA
ABUSE OF COURT PROCESS – REQUIREMENT FOR INVOKING THE APPLICATION OF ABUSE OF COURT PROCESS
“All the factors must be present to invoke the application of abuse of court process. If any is missing then there cannot be abuse of process”. PER NIMPAR JCA
ABUSE OF COURT PROCESS – FEATURES OF ABUSE OF COURT PROCESS
“There are certain features which must coexist for a suit to amount to abuse of process. These are:
Parties must be the same.
Subject matter must be the same.
Reliefs must be the same; and
Some element of malice”. PER NIMPAR JCA
APPEAL -WHEN IS AN APPEAL ENTERED?
“The Supreme Court in the case of MOHAMMED V HUSSEINI SUPRA held that until an appeal is entered it cannot be said to be an appeal”. PER NIMPAR JCA
ABUSE OF COURT PROCESS – DUTY OF THE COURT IN APPLYING THE PRINCIPLES OF ABUSE OF COURT PROCESS
“Furthermore and in view of the nature of abuse of court process which is imprecise, courts, particularly trial courts should be circumspect in applying the checklist to ensure that justice is done to each case and taking its peculiarities into account instead of the blanket application of principles without taking different facts into account”. PER NIMPAR JCA
ABUSE OF COURT PROCESS – MEANING OF ABUSE OF COURT PROCESS
“Generally, it means the abuse of legal procedure or the improper use of legal process. Multiplicity of actions on the same subject matter against the same opponent and on same issues amounts to abuse of Court process”.
ABUSE OF COURT PROCESS – FEATURES OF ABUSE OF COURT PROCESS
“There are certain features which must coexist for a suit to amount to abuse of process. These are:
Parties must be the same.
Subject matter must be the same.
Reliefs must be the same; and
Some element of malice”.
ABUSE OF COURT PROCESS – REQUIREMENT FOR INVOKING THE APPLICATION OF ABUSE OF COURT PROCESS
“All the factors must be present to invoke the application of abuse of court process. If any is missing then there cannot be abuse of process”.
ABUSE OF COURT PROCESS – WHAT AMOUNTS TO ABUSE OF PROCESS
“Furthermore, to amount to abuse of process the employment of the judicial process should be to the annoyance and irritation of the other party, see Saraki V Kotoye (1992) 9 NWLR (Pt246) 156 at 188; Okafor V A. G. Anambra State (1991) 6 NWLR (Pt200) 659 at 681”.
ABUSE OF COURT PROCESS -WHETHER FILING OF TWO MOTIONS ON NOTICE AT THE SAME TIME SEEKING THE SAME RELIEF AMOUNTS TO COMMENCEMENT OF TWO CONCURRENT ACTIONS
“Furthermore the court in the case of KABO AIR LTD V INCO BEV LTD (2003) 6 NWLR (Pt 816) 323 held that the filing of two motions on notice at the same time seeking the same relief does not amount to commencement of two concurrent actions. It therefore implies that there must have been a suit pending before the commencement of another to amount to commencing two actions which can be caught by abuse of court process”.
ABUSE OF COURT PROCESS – DUTY OF THE COURT IN APPLYING THE PRINCIPLES OF ABUSE OF COURT PROCESS
“Furthermore and in view of the nature of abuse of court process which is imprecise, courts, particularly trial courts should be circumspect in applying the checklist to ensure that justice is done to each case and taking its peculiarities into account instead of the blanket application of principles without taking different facts into account”.
ABUSE OF COURT PROCESS -WHEN WILL ABUSE OF COURT PROCESS ARISE?
“Abuse of Court process will only arise if, inter alia, there is multiplicity of suits between the same parties with regard to the same subject matter.”
ABUSE OF COURT PROCESS – A FRESH ACTION BETWEEN THE SAME PARTIES, AND ON THE SAME SUBJECT MATTER WITHOUT A DISPOSAL OF THE PREVIOUS SUIT CONSTITUTES ABUSE OF PROCESS OF COURT
“It is therefore not the existence or pendency of the previous suit that causes the problem, rather it is the institution of a fresh action between the same parties, and on the same subject matter when the previous suit has not been disposed of, that constitutes an abuse of process of Court – Minister Of Works V.Tomas (Nig.) Ltd (2002) 2 NWLR Pt.725 @ 740@ 77”.
APPEAL -WHEN IS AN APPEAL ENTERED?
“The Supreme Court in the case of MOHAMMED V HUSSEINI SUPRA held that until an appeal is entered it cannot be said to be an appeal”.
NOTICE OF APPEAL – REQUIREMENT FOR FILING A NOTICE OF APPEAL BY AN INTERESTED PARTY
“It is trite to point out too that at the time the notice of appeal was filed, it was by an interested party and not a party already in the suit. It is a notice filed by an interloper because not being a party it could not file a valid notice of appeal as of right. It must seek leave of court as constitutionally required”.
CASES CITED
STATUTES REFERRED TO
Court of Appeal Act