BAYELSA STATE CAPITAL CITY DVELOPMENT AUTHORITY V. ECOBANK PLC.
March 19, 2025ACCESS BANK NIGERIA PLC V. ASOL NIGERIA LIMITED
March 19, 2025Legalpedia Citation: (2023-02) Legalpedia 97220 (CA)
In the Court of Appeal
Holden at Lagos
Mon Feb 20, 2023
Suit Number: CA/LAG/CV/876/2021
CORAM
OBANDE FESTUS OGBUINYA
OBIETONBARA OWUPELE DANIEL-KALIO
FATIMA OMORO AKINBAMI
PARTIES
TAYLOR WOODROW NIG. LTD
2. BETA TRANSPORT NIG. LTD
3. LA VENDURE NIG. LTD.
4. HAMZAT SUBAIR (Trading in the name & Style of Hamzat Subair & Co.)
5. WAHEED ENITAN OSHODI (Trading in the name & Style of Oshodi & Oshodi & Co.)
APPELLANTS
1. H.R.M OBA ABDUL FATAI AREMU AROMIRE (The Ojora of Ijora Land)
2. PRINCE M. OLAYIWOLA OLUWA (For and on behalf of Ojora Royal Family & Council)
RESPONDENTS
AREA(S) OF LAW
JURISDICTION, CIVIL PROCEDURAL LAW, STARE DECISIS, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
This appeal interrogates the correctness of the decision of the High Court of Lagos State (trial Court). Mr. K.B. Savage leased part of his parcel of land to the 1st appellant and Nigerian Properties Company Limited in 1949 and 1947 respectively. In 1971, the Nigerian Properties Company Limited in liquidation, subleased its unexpired interest in its own parcel to the 1st appellant. In 1952, the Suenu family granted a lease of a parcel of land to the Nigerian Properties Company Limited. Subsequently, the Nigerian Properties Company Limited subleased that parcel of land which h was leased to it by Suenu family to the 1st appellant. Sometime ago, in 1972, the respondents’ predecessors-in-title sued Mr. K.B. Savage and others in the lower court over the ownership of the land in Iganmu. It was registered as Suit No. LD/562/72. The suit was resolved in favour of the respondents’ predecessors-in-title. The lower court’s decision in the action was upheld by the Court of Appeal on 8th November, 2004 in Appeal No. CA/L/81/2001. The decision was re-affirmed by the Supreme Court on 3rd April, 2009 in Appeal No. SC/54/2005. There were other suits that bordered on the disputed land.
The appellants alleged that the portion of the first appellant’s land, leased to it by the Nigerian Properties Company Limited through the Suenu Family was not affected by the decision of the Supreme Court in SC/54/2005; hence neither it nor its predecessor-in-title was a party to it. The appellants alleged that in May, 2019, the respondents, through their agents, servants and hoodlums, wielding offensive weapons, invaded, encroached and barricaded that portion of land, leased to the first appellant by the Nigerian Properties Company Limited from Suenu Family. Sequel to these, the appellants, via a writ of summons, beseeched the lower court and separately tabled against the respondents declaratory reliefs, injunctive reliefs and damages. The lower court upheld the preliminary objection and dismissed the suit for being an abuse of court process. The appellants were dissatisfied with the decision (ruling) hence, they launched an appeal before this Court.
HELD
Appeal allowed, ruling of the lower court set aside and appellant’s suit remitted to the Chief Judge for reassignment to another Judge.
ISSUES
Whether the learned trial judge erred in law by dismissing the appellants’ Suit No LD/8671/LMW/2019 in limine on the ground that it is an attempt to relitigate the judgment of the Supreme Court in SC/54/2005 entered in favour of the respondent when the affidavit evidence clearly established that neither the appellants nor their predecessors in title (Suenu Family) were parties in SC/54/2005 which has led to a miscarriage of justice?
Whether the learned trial judge erred in law by his failure to make specific pronouncements on the main grounds upon which the respondent’s objection was predicated but chose the ancillary ground of abuse of court process and whether the appellants Suit No LD/8671/LMW/2019 is an academic exercise has occasioned a miscarriage of justice?
Whether from the peculiar facts and circumstances of this case, the failure of the learned trial judge to recuse himself from adjudicating in this case is a breach of the rules of natural justice of nemo judex in causa sua and denial of the appellants’ right to a fair hearing?
RATIONES DECIDENDI
ABUSE OF COURT PROCESS – MEANING OF ABUSE OF COURT PROCESS
The term “abuse of court process” is an elusive concept in the wide domain of litigation. It exhibits variegated forms and is disobedient to one single definition. It has become a mantra in adjudication. It is usually erected, as a shield, by defending parties to abort the life span of an action in its embryo. An abuse of court process is an amorphous concept. It connotes the proper and improper use of judicial process by a party in litigation to interfere with due administration of justice. Generally, the employment of judicial process is only regarded as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his adversary and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. In essence, multiplication of actions on the same subject matter between the same parties, even where there exists a right to bring the action, is regarded as an abuse of court process. The abuse is located in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se, see Saraki v. Kotoye (1992) 11/12 SCNJ (Pt. 1) 26/(1992) 9 NWLR (Pt. 264) 156; CBN v. Ahmed (2001) 11 NWLR (Pt.7424) 369; Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392; Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154; Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347; Oyeyemi v. Owoeye (2017) 15 NWLR (Pt. 1580) 364; PDP v. Sheriff (2017) 15 NWLR (Pt. 1580) 364; Stanbic IBTC Bank Plc v. L.G.C. Ltd. (2017) 18 NWLR (Pt. 1598) 431; Conoil v. Vitol S.A. (2018) 9 NWLR (Pt. 1625) 463; Alli v. NUC (2018) 15 NWLR (Pt. 1641) 161; Nwora v. Nwabueze (2019) 7 NWLR (Pt. 1670) 1; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534; Dike-Ogu v. Amadi (2020) 1 NWLR (Pt. 1704) 45; Optimum C & P. Dev. Ltd. v. Ake Shareholdings Ltd. (2021) 18 NWLR (Pt. 1807) 148. Per – Obande Festus Ogbuinya JCA.
ABUSE OF COURT PROCESS – THE BAROMETER TO GAUGE THE EXISTENCE OF ABUSE OF COURT PROCESS
It is discernible from the elastic nature of abuse of judicial process, chronicled above, that there are no hard and fast rules in detecting the absence or presence of it in any action. Put simply, a court is enjoined by law to examine each case, predicated on its facts and circumstances, in order to ascertain if it displays an abuse of court process or not, see Waziri v. Gumel (2012) 9 NWLR (Pt. 1304) 185. On this score, the factual antecedents of each case have to be matched with the negative elements of abuse of court process. The barometer to gauge the existence of abuse of court process is the presence of multiplicity of suits bordering on the same issues and subject-matter between the same parties. Per – Obande Festus Ogbuinya JCA.
ABUSE OF COURT PROCESS – THE POSITION OF THE LAW ON THE ABUSE OF COURT PROCESS
In the sight of the law, a party’s intention/motive in proliferating actions against an adversary is of no moment, see Saraki v. Kotoye (supra). Interestingly, the law grants the courts the considerable latitude, under their wide inherent powers, to scuttle any matter that is guilty of abuse of court process, see O.S.S.I.E.C v. NCP (2013) 9 NWLR (Pt.1360) 451. In the province of abuse of court process, an action that is later in time vacates the temple of justice, see Dingyadi v. INEC (No. 1) (2010) 18NWLR (Pt. 1224); A-G, kwara State (2018) 3 NWLR (Pt. 1606) 266; Unifam Ind. Ltd. v. Ecobank (Nig.) Ltd. (2019) 1 NWLR (Pt. 1653) 187. An action that is trapped in the intractable nest of abuse of court process is liable to dismissal without relistment, see Dinyadi v. INEC (No.1) (supra); In Re: Apeh (2017) 11 NWLR (Pt. 1576) 252; A-G, Kwara State v. Lawal (supra); Nwosu v. PDP (2018) 14 NWLR (Pt. 1640) 532; Ajaokuta Steel Co. Ltd. v. G.I. S Ltd. (2019) 8 NWLR (Pt. 1674) 213. Per – Obande Festus Ogbuinya JCA.
PRIVY – DEFINITION AND CLASSIFICATION OF A PRIVY
A privy is “A person having legal interest of privity in any action, matter or property; a person who is privity with another”, see Bryan A. Garner, Black’s Law Dictionary, 10 th edition (USA, West Publishing Co., 2014) page 1394. In law, parties include privies who are classified into three: (1) Privies in blood (as ancestor and heir) (2) Privies in law (as testator and executor; intestate and administrator) and (3) Privies in estate (as vendor and purchaser, lessor and lessee), see Coker v. Sanyaolu (1976) 9-10 SC 203; Oyerogba v. Olaopa (1998) 12 SCNJ 115. In the mind of the law, parties to an action embrace privies in estate, see Coker v. Sanyaolu (1976) 10 NSCC 566; Omoloye v. A. -G., Oyo State (1987) 4 NWLR (Pt. 64) 267; Balogun v. Adejobi (1995) 1 SCNJ 242; Adone v. Ikebudu (2001) 7 SCNJ 513; Oyerogba v. Olaopa (1998) 11 12 SCNJ 115. Abubakar v. B. O. A. P. Ltd. (2007) 18 NWLR (Pt. 1066) 319; L. S. B. P. C. v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82. Per – Obande Festus Ogbuinya JCA.
ALTERATION OF PARTIES – ALTERATION OF PARTIES IN SUIT DOES NOT ALTER THE SAMENESS OF PARTIES IN AN ACTION WITH MULTIPLE PARTIES
The general position of the law is that addition or subtraction of parties in suits does not derogate, impinge or alter the sameness of parties in an action with multiple parties. This hallowed principle of law has received the blessing of the case-law in ex cathedra authorities, see Abubakar v. B.O ; A.P Ltd. (2007) 18 NWLR (Pt. 1066) 319, Abiola Sons Ltd. v. 7 up Bottling Co. Ltd. (2012) 15 NWLR (Pt. 1322) 184. Per – Obande Festus Ogbuinya JCA.
DECISIONS OF THE SUPREME COURT – DECISIONS OF THE SUPREME COURT ARE NOT AMENABLE TO REVIEW BY A SUBORDINATE COURT
The law does not grant this court the unbridled licence to interpret, agree or disagree with the decision in SC/54/2005 but to determine its effect (on the rights of the parties herein) on the appellants’ suit, id est, whether it is a judgment in rem or in personam, see Oke v. Atoloye (1986) 1 NWLR (Pt. 14) 241. A fortiori as the judgment in SC/54/2005 is a decision of the apex court which enjoys finality in our corpus juris and not amenable to review by any other subordinate court, see Kanawa v. INEC (2022) 1 NWLR (Pt. 1812) 393. I will be properly guided by this hallowed principle of law and confine myself within the perimeter of this bounden duty. Per – Obande Festus Ogbuinya JCA.
JUDGMENT IN REM AND IN PERSONAM – DIFFERENCES BETWEEN JUDGMENT IN REM AND IN PERSONAM
At this juncture, it is apropos to appreciate the import and dichotomy between judgment in rem and in personam. In Dike v. Nzeka (1986) 4 NWLR (Pt. 34) 144, at 153, Oputa, JSC, graphically, defined and differentiated between two expressions in these lucid words:
It is therefore necessary to have a clear idea of the distinction between a judgment in rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the status of some particular thing or subject matter by a tribunal having the jurisdiction and the competence to pronounce on that status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so for as their interests in the status of the property or persons are concerned. That is why a judgment in rem is a judgment contra mundum binding on the whole world – parties as well as non-parties. A judgment in personam, on the other hand, is on entirely different footing. It is a judgment against a particular person, as distinguished from a judgment declaring the status of a particular person or thing. A judgment in personam will be more accurately called a judgment inter partes. A judgment in personam usually creates a personal obligation as it determines the right of parties inter se to, or in the subject-matter in dispute whether it be landed property or a liquidated or unliquidated demand, but does not affect the status of either the persons to the dispute or the thing in dispute.
See, also, NPA v. Panalpina World Transport Nig. Ltd. (1973) 5SC 77; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Oke v. Atoloye (1986) 1 NWLR (Pt. 15) 241; Okpalugo v. Adeshoye (1996) 10 NWLR (Pt. 476) 77; Rhein Mass Und See GMBH v. Rivwany Lines Ltd. (1998) 5 NWLR (Pt. 549) 265; Ogboru v. Uduaghan (2011) 17 NWLR (Pt. 1277) 727; P.M. Ltd. v. The “M.V. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169; Okorocha v. PDP (2014) 7 NWLR (Pt. 1406) 213; Gbemisola v. Bolarinwa (2014) 9 NWLR (Pt. 1411) 1; Ekagbara v. Ikpeazu (2016) 4 NWLR (Pt. 1503) 411; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Saleh v. Abah (2017) 12 NWLR (Pt. 1578) 100; Yanaty Petrochemical Ltd. v. EFCC (2018) 5 NWLR (Pt. 1611) 97; Noekoer v. Gov., Plateau State (2018) 16 NWLR (Pt. 1646) 481; Adeniran v. Olusokun II (2019) 8 NWLR (Pt. 1673) 98; La Warri Furniture Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262; B.L.L.S. C. Ltd. v. M.V. “Western Star” (2019) 9 NWLR (Pt. 1678) 489; Igwemma v. Obidigwe (2019) 16 NWLR (Pt. 1697) 117; Transnav P.N. Ltd. v. Velcan E.H.D. Ltd. (2020) 7 NWLR (Pt. 1723) 293; Ekweozor v. Reg. Trustees, S.A.C.N. (2020) 11 NWLR (Pt. 1734) 51. Per – Obande Festus Ogbuinya JCA.
JUDGMENT IN REM AND IN PERSONAM – WHETHER OR NOT A DECISION IN A LAND MATTER IS A JUDGMENT IN REM OR IN PERSONAM
The nagging question, which begs for an answer is: whether a decision in a land matter is a judgment in rem or in personam? The answer is tucked away in in the belly of case-law. In NPA v. Panalpina World Transport Nig. Ltd. (1973) 5 SC 77 at 98, Coker, JSC, insightfully, declared:
The fact that jurisdiction over an action for declaration of title to land is confined to the lex forum rei sitae does not eo ipso make the action one in rem for the judgment in such an action binds only the parties to the action and does not decide the status or the title of the land as against persons generally, and does not bind those persons who are not parties to the action.
By sheer happenstance, in Oke v. Atoloye (supra), at 258, Oputa, JSC, concretised that proclamation, thusly:
In a land case, the judgment is usually for the plaintiffs or for the Defendants, it is never a judgment against the land itself. That is why there can be several land cases in respect of the same piece of land inspite of existing judgments pronouncing that as between the parties then before the court, the land belongs to either the Plaintiffs or the Defendants; and that is also why in a land case parties can plead all sorts of estoppels, because a judgment in personam is necessarily a personal obligation binding on the parties or their privies. See, also, Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; Dike v. Nzeka (1986) 4 NWLR (Pt. 34) 144. Per – Obande Festus Ogbuinya JCA.
JUDGMENT IN PERSONAM – A COURT’S DECISION ON A LAND MATTER FALLS SQUARELY WITHIN THE FIRMAMENT OF JUDGMENT IN PERSONAM
It stems from these magisterial pronouncements, which are warehoused in ex cathedra authorities that wear the deserved insignia of finality, that a court decision on a land matter falls squarely within the firmament of judgment in personam (against a person). Such a decision orbits outside the four walls of judgment in rem (against a thing). It admits of no argument, deducible from the record, the touchstone of the appeal, that the proceedings, which meandered from the lower court to the apex court, that midwifed the decision in SC/54/2005, was a land matter. It stands to reason that the decision in SC/54/2005, its progeny, was/is a classic exemplification of a judgment in land matter. On this score, the law categorises it as a judgment in personam. It is, sometimes, classified as judgment in personam but ad rem, see Sosan v. Ademuyiwa (supra) at 252. Being a judgment in a land case, it cannot “be elevated to the dignified status of a judgment in rem”, see Oke v. Atoloye (supra) at 258, per Oputa, JSC. Per – Obande Festus Ogbuinya JCA.
JUDGMENT IN PERSONAM – THE CHIEF CHARACTERISTICS OF JUDGMENT IN PERSONAM
The chief characteristic of judgment in personam is that it is disrobed/drained of the attribute of contra mudum – binding on non-parties and the whole world. Per contra, a judgment in personam binds inter partes – only the parties to the action. Per – Obande Festus Ogbuinya JCA.
ACADEMIC SUIT – WHEN DOES A SUIT BECOME ACADEMIC.
In Plateau State v. A-G., Fed (2006) 3 NWLR (Pt. 967) 346 at 419, Tobi, JSC, incisively, explained academic suit, thus:
A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity.. Per – Obande Festus Ogbuinya JCA.
JURISDICTION – A COURT IS DIVESTED OF JURISDICTION TO ADJUDICATE OVER ACADEMIC DISPUTES
It is settled law that a court is divested of the necessary jurisdiction to adjudicate over academic disputes. This is so even if their determination will enrich the jurisprudential content of the law. Such academic questions are divorced from live issues which engage the adjudicative attention of the courts, see A.-G., Anambra State v. A.-G., Fed. (2005) 9 NWLR (Pt. 931) 572; Ugba v. Suswan (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; FRN v. Borishade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2 NWLR (Pt. 1442) 103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva (2017) 10 NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343; Anyanwu v PDP (2020) 3 NWLR (Pt. 1710) 134. Per – Obande Festus Ogbuinya JCA.
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)
