SAMUEL OSARO IYAMU VS ATTORNEY GENERAL OF THE FEDERATION
April 27, 2025THE REGISTERED TRUSTEE OF THE CATHOLIC DIOCESE OF PORT HARCOURT v MRS. CHARITY DUBA GBARADE & ANOR
April 27, 2025Legalpedia Citation: (2015) Legalpedia (CA) 12137
In the Court of Appeal
HOLDEN AT PORT HARCOURT
Fri Nov 6, 2015
Suit Number: CA/PH/164M/2014
CORAM
MOHAMMED LADAN TSAMIYA
HON. JUSTICE M. L. GARBA JUSTICE, COURT OF APPEAL
HON. JUSTICE EJEMBI EKO JUSTICE, COURT OF APPEAL
PARTIES
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED. APPELLANTS
RESPONDENTS
AREA(S) OF LAW
NIL
SUMMARY OF FACTS
The Applicant before the Court of appeal in his motion prayed the court for extension of time within which to apply for leave to appeal as an interested party, leave to appeal as an interested party against the decision of the High Court of Rivers State (per J.N. Akpughunum J) delivered on the 2nd day of March 2012 amongst others on grounds that the Applicant has a direct interest in the subject matter and has been directly affected by the post judgment order made by the trial court. The Applicant had earlier filed a notice of appeal, against the post-judgment order within the statutory period which was struck out by this Court as the proper filing fees were not paid. The Applicant subsequently filed a motion on notice praying for extension of time to seek leave, leave to appeal and extension of time to appeal which was also dismissed on the grounds that the Applicant was not a party in the proceedings in which the order was made against the 2nd Respondent. The Applicant being affected by this order has filed the instant motion on notice to enable the Applicant appeal as an interested party. This application was brought more than two years after the trial court gave its judgment. The court dismissed the application on grounds that it was an abuse of court process.
HELD
Application Dismissed
ISSUES
None
RATIONES DECIDENDI
ABUSE OF COURT PROCESS – CONCEPT OF ABUSE OF COURT PROCESS
“I agree with the counsel that the concept of abuse of court process is very imprecise. Taking out a gagging process to merely frustrate an enforcement or garnishee proceedings could constitute an abuse of court process. An abuse of process may arise when a party institutes multiple actions against the same opponent on the same subject matter and over the same issues. See Saraki v. Kotoye (1992) 9 NWLR (pt. 264) 189. That is exactly what the instant Applicant is doing against the Respondent over the same subject matter and on the same issues.” PER E. EKO, J.C. A
ABUSE OF COURT PROCESS – WHAT AMOUNTS TO ABUSE OF COURT PROCESS
“I think it is an abuse of process for a litigant to bring up action ostensibly to tempt courts of co-ordinate jurisdiction or panels of the same court to give conflicting or contradictory decisions over the same subject matter and over the same issue. That is an improper use of judicial process by a party in litigation to interfere with the due administration of justice. See Agwasim V. Ojichie (2004) 10 NWLR (pt.882) 612 at 624 – 625; R – Benkay Nig. Ltd V. Cadbury Nig. Ltd (2012) LPELR 7820 (SC).” PER E.EKO, J.C. A
PARTIES TO AN ACTION- CRITERIA FOR QUALIFICATION AS A PERSON INTERESTED IN A SUIT
“Now, borrowing and adapting to this case the words of Ogundare, JSC in IN RE: Ijelu v. L.S.P.D.C. (1992) NWLR (pt. 266) 414: to qualify as a person interested in the matter within the meaning of that phrase in section 243(a) of the 1999 Constitution the Applicant must show that he has a legal interest in the subject matter of the dispute and might, therefore have been a party to that suit”. See also Maja & ors v. Johnson (1951) 13 WACA 194”. PER E. EKO J.C.A
VALIDITY OF JUDGMENT OF COURT –THE JUDGMENT OF A COURT OF LAW REMAINS VALID AND EFFECTIVE UNLESS SET ASIDE
“The law as re-stated by the Supreme Court in Rossek V. A.C.B. Ltd (1993) 10 SCNJ 20; (1993) NWLR (pt. 312) 382 is, per Bello, JSC (as he then was):
“It has never been the law that a party may review a judgment, regard it as a nullity and disobey it. A prisoner who thinks that his conviction was a nullity cannot with impunity walk out of the prison. Similarly, a judgment debtor cannot lawfully resist execution because he considers the judgment against him was null and void. Thus, a judgment of a court of law remains valid and effective unless is set aside by an appeal court or by the lower court itself if it acted without jurisdiction or in the absence of the aggrieved party:” Williams v. Sanusi (1961) ALL NLR 334 at 337; Ojiako v. Ogueze (1962) 1 ALL NLR 58 at 61; Adebayo v. Sonowo (1969) 1 ALL NLR 176 at 194; Ajao V. Alao (1986)5 NWLR (pt 45) 802 at 823; and Yonwuren Odermn Signs (1985) 1 NWLR (pt 2) 244; (1985) 2 SC 86; Odiase v. Agbo (1972) 1 ALL NLR 170 at 176 and Melifonwu v. Egbiyi (1982) 9 SC 145.” PER E.EKO, J.C.A
GRANT OF EXTENSION OF TIME- AN APPLICATION FOR EXTENSION OF TIME IS NOT GRANTED AS A MATTER OF COURSE
“By Sections 240 – 243 of the Constitution of the Federal Republic of Nigeria 1999 as amended, the right of appeal is a Constitutional Right. This notwithstanding, any appellant who is tardy about enforcing this right has an added burden of calling for the leave of this Court to extend time for that purpose. Application for leave to appeal and for extension of time to appeal it must be appreciated, is never granted as a matter of course.
It is subject to the discretion of this Court which must be exercised judicially and judiciously having regard to the facts of the case”. See the cases Minister, P.M.K-V. Eh (Nig) Ltd (2010) 12 N.W.L.R (Pt. 1208) 261; Nigeria Army v. Yakubu (2013) 8 NWLR (Pt. 1355) 1.PER S. J. ADAH, J.C.A
RULES OF EVIDENCE – CONSEQUENCES OF AN ASSERTION WITHOUT PROOF
“The law is settled on the rules of evidence that what is asserted without proof is taken as not established. He who asserts must prove his assertion”. PER E. EKO J.C.A
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)Court of Appeal ActRivers State High Court Rules.2011.
