3PLR – YISAU V. WEMA BANK LIMITED
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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YISAU
V.
WEMA BANK LIMITED
COURT OF APPEAL
IBADAN DIVISION
29TH NOVEMBER 2000
CA/I/176/92
3PLR/2000/244 (CA)
OTHER CITATIONS
11 WRN 91
BEFORE THEIR LORDSHIPS
SUNDAY AKINOLA AKINTAN, JCA
MORONKEJI OMOTAYO ONALAJA, JCA
OLUFUNLOLA OYELOLA ADEKEYE, JCA
BETWEEN
YISAU
AND
WEMA BANK LIMITED
REPRESENTATION
Chief Adesegun Adebayo – for the appellant
Oluwole Aina – for the respondent
MAIN ISSUES
PRACTICE AND PROCEDURE – Abuse of process- categories of – whether closed.
TORTS – Detinue – ingredients of.
MAIN JUDGEMENT
M.O. ONALAJA, J.C.A. (Delivering the leading judgment):
The Plaintiff commenced an action against the Defendant at Ijebu Igbo High Court of Ogun state wherein after issuance of the writ of summons on defendant which was duly served, pleadings were filed, delivered and exchanged. Plaintiff averred in the statement of claim in suit HOB/9/90 as follows:-
“(3) The plaintiff and the defendant executed a deed of legal mortgage registered as No. 33 at page 33 in volume 1279 at the Lands registry Ibadan in respect of the loan;
(4) The plaintiff had fully repaid the loan which is the subject matter of the said legal mortgage since early 1976;
(5) The defendant wrote the plaintiff a letter dated 6th October 1976 intimating the plaintiff of their willingness to prepare a deed of release in respect of the legal mortgage;
(6) Up till now the defendant has failed and or refused to execute the deed of release without any just cause
(a) WHEREOF (a) The plaintiff’s claim is for
(b) A declaration that the continued refusal of the defendant to execute a deed of release in favour of the plaintiff in respect of mortgage registered as No.33 at page 33 in volume 1279 in the lands registry Ibadan (now Abeokuta) long after the plaintiff had fully repaid the loan relating to the said deed of mortgage, is wrongful, illegal and unjustifiable;
(c) The sum of N50,000.00 (Fifty thousand Naira) against the defendant to execute the said deed of release referred to in claim (a) be executed by it in favour of the plaintiff immediately.”
In a prolix statement of defence, the defendant in some paragraphs of the statement of defence pleaded as follows:-
“3. The defendant denies paragraphs 4,5,6,7,8,9,10,11,12 and 13 of the plaintiff ‘s statement of claim and therefore puts the plaintiff to the strictest proof thereof-
(7) The defendant also avers that, to further strengthen the banker and customer good relationship, the defendant released the documents mention in paragraph 5 above to the plaintiff with an agreement that a deed of the release would not be executed in favour of the plaintiff until he, the plaintiff, liquidates in full whatever his indebtedness to the Defendant/Bank.
(8) The defendant further avers that, as a result of the said mutual agreement as stated above, the plaintiff being an old customer of the Defendant/Bank , and in order to assist him, the defendant released to the plaintiff the deed of conveyance dated the 27th day of June, 1968 and the deed of legal Mortgage dated the 27th day of April 1972 mention in paragraph 5 above and the plaintiff did acknowledge the receipt of the two documents on the 3rd day of October, 1975. The defendant shall tender and rely on the receipt by the plaintiff of the above-mention document at the trial of this suit.
(9) The defendant avers that despite the release to the plaintiff of the deed of conveyance and the deed of legal mortgage on the 3rd of October, 1975, in furtherance of the mutual agreement between the plaintiff and the defendant as pleaded in paragraph 6 above, the plaintiff requested for and was granted a temporary loan of N21,390.00 (Twenty-one thousand, three hundred and ninety naira) for the execution of Local Purchase Orders to the Ijebu Igbo Water Project. The letter of confirmation by the Ijebu Igbo Water Project written to the defendant by its Project Manager dated the 6th day of December, 1977, and a letter by the defendant’s Ijebu Igbo Branch Manager dated the 7th day of December, 1977, to the defendant’s Commercial Manager, confirming the advancement of the said loan of N21,390.00(Twenty-one thousand, three hundred and ninety naira) to the plaintiff shall be tendered and relied upon at the trial of this suit.
(10) The defendant also avers that when the plaintiff defaulted in the repayment of the loan/overdraft facilities granted to him after several demands in writing from him to do so, the defendant then instituted an action in suit No HCB/14/84 – Wema Bank limited Versus Alhaji Yisau Agarawu in order to recover from the plaintiff his total indebtedness to the defendant which stood at N23,925.51(Twenty-three thousand, nine hundred and twenty-five naira, fifty one kobo) as at the time the action was instituted. The defendant shall tender and rely on letters of demand dated the 18th of July, 1979, 31st day of August, 1983, and the 22nd day of Sept., 1993, written by the defendant to the plaintiff at the trial of this suit.
(11) The defendant further avers that in the suit No.HCB/14/84 mentioned in paragraph 10 above, the plaintiff duly admitted the amount being owed the defendant and judgment was accordingly given in favour of the defendant on the 7th day of February, 1985.
(12) The defendant avers that, the plaintiff in the said suit No.HCB/14/84, did not only admit the amount claimed by the defendant, but he also admitted the rate of interests claimed in the Writ of Summons and which claim was included in Terms of Settlement entered into by the plaintiff defendant. The defendant shall tender and rely on the Writ of Summons and the Terms of Settlement in suit No. HCB/14/84 at the trial of this suit.
(13) The defendant shall contend at the trial of this suit that , the judgment in suit No.HCB/14/84, entered in favour of the defendant/Bank includes the payment of interests by the plaintiff until the whole judgment debt is finally liquidated and that, the plaintiff is still indebted to the Defendant/Bank till this day.
(14) With reference to paragraph 13of the plaintiff’s statement of claim, the defendant shall contend at the trial of this suit that, the present action is akin to the action instituted by the plaintiff against the defendant in suit No.HCB/14/84 which action was also dismissed on the 19th day of January, 1989. The defendant shall tender and rely on the writ of summons and the statement of claim and the certified true copy of the Judgment in suit No. HCB/14/84 at the trial of this suit .
(15) The defendant shall further contend at the trial of this suit that this present suit No. HCB/14/9/90 amounts to an abuse of the process of this Honourable court, the defendant having appealed to the Court of Appeal, Ibadan against the judgment of this Honourable court in suit No. HCB/21/87, and will therefore urge the court to dismiss the plaintiff’s claims in this suit in their entirety.
The defendant shall tender and rely on the notice of Appeal and the Revenue Collector’s Receipt No.279410 dated the 18th day of April, 1989, obtained upon filing the said Notice of Appeal at the trial of this suit.
(16) The defendant shall also contend at the trial of this suit that the plaintiff has no justiciable cause of action and that, the claim are speculative, frivolous and an abuse of the process of this Honourable court.”
The plaintiff instituted suit No. HCB/15/89 before suit No. HCB/9/90 which on common ground that the claims in the two suits were identical but later plaintiff applied on notice for discontinuance of suit No. HCB/15/89 which after a considered ruling the learned Judge granted plaintiff’s prayer for discontinuance of suit No. HCB/15/89 with the action struck out. Upon completion of pleadings in suit No. HCB/9/90 the defendant brought an application under Order 24 Rules 2 and 3 of the High Court (Civil Procedure) rules of Ogun State 1988 dismissing the plaintiff/respondent’s action for being a gross abuse of the process of the court and also for not being justiciable in law. The defendant filed a supportive affidavit of 35 paragraphs with attached document marked as Exhibits A-P.
Learned counsel referred to suit No. HCB/14/84 admitted as Exhibit A was for defaulted payment of overdraft facility granted to the plaintiff by respondent which was settled upon terms of settlement admitted as Exhibit C as plaintiff submitted to Judgment with emphasis that suit Nos. HCB/151/89 and HCB/9/90 which suit is the subject of this appeal are identical claims, same subject matter, same parties and same issues, thereby the plaintiff was estopped by conduct from claiming same reliefs in two actions. The learned counsel for the plaintiff contended that having discontinued suit No. HCB/51/89 which was struck out did not operate as estoppel. That as the loan of 1972 was fully paid and return of title deed to the plaintiff and the mortgaged deed based upon it returned to plaintiff therefore defendant had no lien to refuse to sign the deed of release. The action was made bona fide therefore the motion should be dismissed reliance was put on the case of Ishmael Amaefune & Ors. v. The State (1988) 4 SCNJ page 69 at 71 and 72. The application for dismissal should be refused and dismissed.
In a considered ruling at pages 79 to 96 the learned Judge stated in part of his ruling as follows: –
“From the affidavit evidence before the Court and submissions of Counsel I find that there are six civil matters between the parties HCB/14/84: Wema Bank Ltd. v. Alhaji Yisau Agarawu where consent judgment was given as per terms of settlement dated 26th Feb., 1985 on 27th Feb., 1985 in favour of the plaintiff/bank and there was no appeal against the judgment up to date
(1)
2(1) (3) (a)(b)(c)
(4)(1) (2)
(5) In SUIT NO. HCB/15/89 Alhaji Yisau Agarawu v. Wema Bank Ltd. the writ of summons reads and I quote –
The Plaintiff’s claim is for:
(a) A declaration that the continued refusal of the defendant to execute a deed of release in favour of the plaintiff in the lands registry Ibadan (now at Abeokuta) long after the Plaintiff had repaid the loan relating to the said deed of mortgage, is wrongful, illegal and unjustifiable.
(b) the sum of N50,000.00( fifty thousand naira against the defendant being special and general damages suffered by the plaintiff as a result of the wrongful illegal and unjustifiable refusal of the defendant to execute the said deed of release and
(c) an order against the defendant that the deed of release referred to in claim (a) be executed by it in favour of the plaintiff immediately.
In that suit a NOTICE OF DISCONTINUANCE dated 13th December, 1989 and was filed on the same day and the matter was struck out on 16th January, 1990.The present Suit No. HCB/9/90 is identical to Suit No. HCB/15/89 in which the plaintiff later field a notice of discontinuance.
From the affidavit before the Court and the address of counsel, the Court finds that:
(1) Suits Nos. HCB/21/87, HCB/29/87, HCB/6/88. HCB/15/89 and HCB/9/90 between the same parties as offspring of Suit No. HCB/14/84
(2) That there is not appeal against consent judgment of 27th Feb., 1985 in HCB/14/84
(3) This court cannot in any way sit as a Court of Appeal on the said judgment as stated in the case of Chukwunto v. Caukwu & Ors. 14 WACA 341 at 342 where it was held that
(2) A judgment liable to appeal remains final and valid until it is set aside by the Higher Court.”
A final order is non the less final by reason that it is subject to appeal, and a judgment may be final although it directs inquiries or deals with costs only or is made on an interlocutory application or reserves liberty to apply. Following the cases referred to above, the court finds the judgment in HCB/14/84 between the parties on 27th February, 1985 as a final judgment until it is set aside by a Higher Court and that the present suit HCB/9/90 between the parties as an offshoot of suit No. HCB/14/84 and this Court as such cannot and will not sit as a Court of Appeal on that judgment. The Court also finds the present abuse of the process of the court and is accordingly dismissed.
The Plaintiff was dissatisfied with the above ruling and timeously filed a notice of appeal to be found at pages 97 and 98 of the record of appeal. In it plaintiff raised one ground of appeal and furnished the particulars. The Plaintiff is hereinafter referred to in this judgment as APPELLANT whilst the Defendant henceforth is referred to as the RESPONDENT in this judgment. In accordance with the rules of this Court, Appellant filed his brief of argument in this court on 16th Feb., 1993. He relied and adopted same in argument of this appeal. Based upon the singular ground of appeal, appellant raised one issue for determination as follows:
ISSUES FOR DETERMINATION
Whether suit No. HCB/9/90 constitutes an abuse of the process of court in view of suit Nos. HCB/14/84,HCB/21/87, HCB/6/88 and HCB/15/89 which had previously been disposed of.”
At page 2 paragraph 3 of Respondent’s brief of argument filed with leave of this court on 16/6/2000 he relied and adopted same at the hearing of this appeal, therein based upon the only ground of appeal, he raised the undermentioned as the only issue for determination thus: –
“Whether the particular facts and circumstance of this appeal the lower court was right in holding that suit HCB/9/90 constituted an abuse of Court process.”
Appellant in argument submitted that the action in suit HCB/9/90 was an action in detinue which was in respect of loan granted in 1972 which was fully repaid by 1976. After payment of the loan, the Respondent returned appellant’s title deed that covered the transaction and advised appellant to prepare a deed of release on the mortgage. The letter was marked as Exhibit A in the lower court. The letter was dated 28/2/89 which appellant submitted gave right to the cause of action on 28/2/89.
The lower court confused the loan of 1972 with loan of 1977 obtained by the appellant from respondent. All the suits except HCB/21/87 which was a defamatory action and HCB/9/90, related to the loan of 1977. In all the previous actions none raised the question of failure to execute a deed of release or decided such issue. The finding of the lower court that: –
“The court also finds the present suit HCB/9/90 as a gross of abuse of the process of the court and is accordingly dismissed.”
was a grave error appellant submitted in support, he relied on the case of Chief Harold Sodipo v. Lemminjeinen & Anor. (1992) 8 NWLR (Pt. 258) at 229, 233 to 235.
Suit HCB/21/87 delivered on 19/1/89 held that appellant was only indebted to respondent for the sum of N682.81k which amount had already been paid by appellant to respondent. By shutting out appellant from presenting and proving his case the lower court was in breach of appellant’s fundamental rights to fair hearing guaranteed under Section 36(1), 1999 Constitution of the Federal Republic of Nigeria. This court should grant and restore the fundamental right to fair hearing denied him by the lower court by allowing the appeal as HCB/9/90 did not constitute an abuse of process of court.
Respondent in support of the issue raised by it after narrating the facts contended and submitted that appellant misconstrued his claim as lying in detinue whereas it was contractual. The term of the contract expressed or implied was that the mortgage deed lapsed and appellant is only entitled to a release of the deed once he had fully repaid the loan, the claim was in contract not detinue. Appellant was in error that the mortgage covered the transaction of the loan of 1972 and not the subsequent loan of 1977. If appellant was correct he should have pressed for the release of the mortgage before institution of Suit HCB/14/84 if it was unrelated to 1977 transaction in support reliance was put in the case Standard Bank v. Ikomi (1972) All NLR 8; Otegbola v. Esso (1966) All NLR 162. The learned judge was right that HCB/9/90 was an attempt to relitigate HCB/14/84 and constituted an abuse of court’s process without waiting for the outcome of the two appeals in HCB/21/87 and HCB/29/87 on the same subject matter. The learned Judge was right in so holding as decided in Amufule v. The State 4 SCNJ 69 at 71, 72; Morgan v. West African Automobile Eng. Ltd. (1971) NMLR 219 at 220-221. As the appeals were still pending the litigation was not at an end as the Court of Appeal in its appellate powers could either affirm the judgment or upturn it see Shodeinde v. The Ahmadiya Movement in Islam (1980) All NLR 64 at 72 SC.
Respondent concluded that appellant’s present suit constituted an abuse of process of court and was rightly dismissed as held in (1) Engr. Enterprises v. A.G. Kaduna State (1985) NWLR (Pt. 1) 17; (2) Okorodudu v. Okoromadu (1977) 3 SC 21; (3) Amufule v. The State supra and Morgan v. WAA Eng. Ltd. supra. All the 5 cases filed by the appellant against respondent were off shoot of Suit No. HCB/14/84 based on the appellant’s indebtedness on his current account No. 480 and matters incidental thereto. As the issues relating to the account have been decided to finality by the High Court in suit HCB/21/87 and HCB/29/87, none of the parties could relitigate the issues or matters under any guise.
Similarly as appeals are pending on HCB/21/87 and HCB/29/87 until the appeals are decided by the Court of Appeal no party is allowed to relitigate afresh the issues the appeal court may decide. From the foregoing the appeal lacks substances, misconceived and should be dismissed for the reasons submitted and contended by the Respondents. The above is a resume of the submissions and contentions in this appeal, in support of the issues by the parties. The issues raised by the parties can succinctly be put whether having regard to the five cases filed by both parties with two of them pending on appeal Suit No. HCB/9/90 constitutes an abuse of process of court. Appellant’s issue is wider and elaborate.
Respondent relied on Order 24 Rules 2 and 3 of the High Court (Civil Procedure) rules of Ogun State Edict 1987 and the inherent jurisdiction of the court simply put that suit HCB/9/90 be dismissed been an abuse of process of court as reflected in the resume of the issues by the parties. In my view the issue formulated by appellant is more germane to this appeal. The High Court Civil Procedure Rules of Ogun State did not define what constitutes abuse of process. As a result incursion shall be made to face this threshold point as defined below.
Page 10 BLACK’S LAW DICTIONARY SEVENTH EDITION stipulates as follows –
“ABUSE noun (1) A departure from legal or reasonable use, misuse (2) physical or mental maltreatment”
“ABUSE OF PROCESS – The improper and tortuous use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope. Also termed abuse of legal process, malicious abuse of process, malicious abuse of legal process, wrongful process of law.”
IN BONVIERS LAW DICTIONARY 3rd Edition page 94 abuse of process is defined as: –
“International irregularity for the purpose of gaining an advantage over one’s opponent.”
The above was succinctly put at page 12 in COMMENTARIES FROM THE BENCH PART 1 by ONALAJA J (as he then was) in his comment on Paper presented by late HON. JUSTICE AUGUSTINE NNAMANI JSC, CON on “ABUSE OF JUDICIAL PROCESS” at ALL NIGERIA JUDGES CONFERENCE 1988 that: –
“From the foregoing, succinctly put, abuse of judicial process is misuse of judicial procedure intentionally to feather one’s interest to the detriment of one’s adversary.”
In Ishmael Amaefule, Cyril Amaefule v. The State (1988) 2 NWLR (Pt. 75) at 156 SC where the issue for the consideration before the Supreme Court was whether the information filed by the Attorney General in IMO HIGH COURT whilst case against the appellants for the same offence was still pending in the CHIEF MAGISTRATE COURT WAS an abuse of the process of the Court. Oputa JSC at page 177 observed in his classical manner thus: –
“Abuse of process of court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexations or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process, …….
On very careful consideration I am forced to the conclusion that to amount to an abuse of process the proceeding or step in the proceeding complained of, will, in any event be lacking in bona fides, it has to be an improper use of perversion of process after it has been issued. The term abuse of process has an element of malice on it. It thus has process Civil or Criminal, for a purpose and to obtain a result not lawfully warranted or properly attainable thereby. These elements are completely lacking here.”
In Alhaji Saadu Olutinrin v. Alhaji Hanafi Agaka & Anor. (1998) 6 NWLR (Pt. 554) at 366 at 375 CA held that: –
“(1) It is an abuse of the process of the court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions ON THE SAME SUBJECT MATTER against the opponent on the same issue. It is also an abuse of judicial process for the plaintiff to file a notice of discontinuance so that he may have his way in a new suit (Okafor v. A.G. Anambra State) (1991) 6 NWLR (Pt. 200) page 659; Olawore v. Olanrewaju (1998) 1 NWLR (Pt. 534) page 436 at 455 referred to and applied.
(3) An abuse of the process of court can manifest itself in many ways than just RES JUDICATA. In the instant case, from all the circumstances having regards to the subject matter the respondent’s action is clearly an abuse of the process of court.”
In Gloria Gomwalk & Anor. v. The Military Administrator Plateau State & 6 Ors. (1998) 6 NWLR (Pt. 555) page 653 the Court of Appeal held: –
“(2) Abuse of court process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent 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 (Saraki v. Kotoye) (1992) 9 NWLR (Pt. 264) page 156 referred to.
(3) Multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies on the multiplicity and manner of the exercise of the right, rather than the exercise of the right.”
On discontinuance of action as to whether it constitutes an abuse of process the Court of Appeal in Benaplastic Industries Ltd. v. MV “Antoliy v. Vasilyev” and Two Ors (1999) 10 NWLR (Pt. 624) page 620 stated that: –
“(1) By filling a notice of discontinuance the plaintiff voluntarily puts an end to the action which he has voluntarily instituted. In the instant case, the Enugu suit came to an end on 11th July, 1997, the day the notice of discontinuance was filed. The trial court was therefore in a serious error when it held that the appellant has two actions of the same parties, reliefs and subject matter (Emeghara v. Health Management Board(Imo State) (1987 2 NWLR (Pt. 56) page 330 referred to.”
The Supreme Court held in Prince Yaya Adigun & 2 Ors. (For themselves and on behalf of Ogunmakinde Ande Ruling House Iwo) v. The Secretary, Iwo Local Government & Anor. (1999) 8 NWLR (Pt. 613) page 30 at 38 that it constitutes an abuse of court process for a party to disregard a previous decision of the Supreme Court on a matter and seek to relitigate the issue. It is trite law that no court supports or encourages the abuse of its process. Alhaji Shifawu & 2 Ors. (For themselves and for and on behalf of Oke Branch of Salawu Family) v. Pa. A. K. Balogun & 5 Ors. (1999) 10 NWLR (Pt. 622) page 214 at 226 – 227 CA; Otunba Abdullateef Adebayo Owoyemi v. The Governor of Ogun State & Two Ors. (1993) 2 NWLR (Pt. 278) page 702 at 707; Mrs. Titilola Yewande Koku v. Foluso Olanrewaju Koku (1999) 8 NWLR (Pt. 616) page 672 at 683; Mr. Taiwo Ilori Ogun v. Mr. Moliki Akinyelu & Two Ors. (For themselves and on behalf of OSATA ADASIN FAMILY OF IJANA QUARTERS OTTA OGUN STATE, (1999) 10 NWLR (Pt. 624) at 671 at 692 – 693 CA.
From the foregoing authorities the categories of abuse of process of court are not closed and whether the acts and facts in a case constitutes abuse of process of court or not shall depend on the peculiar circumstances of each case as stated above the categories are never closed. In the instant appeal it is common ground that appellant applied under the relevant Order 2a rule 2 of Ogun State High Court Civil Procedure Rules Edict 1987 previously Order 30 rule (1) High Court Ogun State Civil Procedure Rules Cap 414, Vol. 3, Laws of Ogun State 1978 for discountenance of suit HCB/15/89 which leave was granted after which he filed suit HCB/9/90 which is the subject matter or issue on appeal. The learned Judge conceded the discontinuance but that the claims were identical there is no gainsaying that as at the date of the ruling there were no two cases seeking the same subject matter, so there was no abuse of process of having two similar actions pending before the learned judge as decided in Benaplastic Industries Ltd. v. MV Antoliy Vasilyev” supra.
On this point the contention of the appellant is meritorious. With regard to the other suits HCB/14/84, HCB/21/87, HCB/6/88 they do not cover the same subject matter, with respect to the contention of the Respondent that they cover the same subject matter is untenable, in that all of them were contractual whilst from the pleadings filed in HCB/9/90 was rooted in the tortuous action of DETINUE as decided in Odumosu v. ACB. Ltd. (1976) 11 SC 55, 261; UBA Ltd. v. Mudasiru Oladipo Ademuyiwa (1999) 11 NWLR (Pt. 628) page 570 at 589 the Court of Appeal stated what a plaintiff must plead in a claim for detinue as follows: –
“(8) For as plaintiff to succeed in a suit in detinue, the plaintiff must establish by pleading the wrongful detention of his chattel by the defendant after demand; that is wrongful detention with demand and the refusal of the return of his chattel in the statement of claim. A case in detinue will disclose no good cause of action where the statement of claim does not state the wrongful detention even though same was in the writ of summons (Udechukwu v. Okwuka (1956) SCNLR 189 referred to)”
A scrutiny of some averments in the statement of claim of appellant reflected above confirmed that appellant pleaded and predicated his case in HCB/9/90 on detinue whilst the other cases covered contract and tort of defamation in which judgment had been given. The pending case on appeal was banker/customer relationship of indebtedness, though same parties they do not cover the same subject matter, and no judgment had been decided on detinue. No malice was proved against appellant, he admitted debt to Respondent and where he lost he exercised his constitutional right of appeal.
For the foregoing reasons the learned Judge was in error to conclude that suit HCA/9/90 was abuse of the process of court. The appeal therefore succeeds with the case remitted to the High Court of Ogun State Ijebu Igbo for determination on the merit. For this reason there was ominous silence on the merits or demerits of the case, being an interlocutory matter it is trite law that this court must not and shall not comment on the substantive issues Obi v. Obi (1998) 4 NWLR (Pt. 544) page 51 CA; General Electric Co. v. Harry Akande (1999) 1 NWLR (Pt. 588) page 532 CA.
As the appeal is allowed the ruling of Hon. Justice E.A. ADENUBI of 27th March, 1991 dismissing appellant’s claims as been abuse of the process of court is hereby overule and set aside with the order that the matter shall be heard by another Judge at Ijebu Igbo High Court of Ogun State on the merits. As the appeal succeeds the appellant is awarded cost. Acting judicially and judiciously, I fix the cost in the sum of N5,000.00 in favour of appellant against respondent. The cost awarded in the lower court is hereby set aside. If already paid a refund shall be made immediately by the receiver to the payer. The cost in the court below shall abide the new trial.
SUNDAY AKINOLA AKINTAN, J.C.A. I had the privilege of reading a draft of the leading judgment prepared by my learned brother, Onalaja, J.C.A. The facts of the case and all the issues raised in the appeal are well set out and fully discussed in the leading judgment. I entirely agree with the conclusion reached therein that the appeal should be allowed. I too allow the appeal and abide with all the consequential orders made therein, including that on costs.
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A. I have read in advance the judgment just delivered by my learned brother M.O. Onalaja JCA.
I agree with his reasoning that the learned trial judge was in error to have concluded that the suit HCA/9/90 was an abuse of the process of court. It is also my conclusion that this appeal succeeds, while the case is to be remitted to the High Court of Justice Ogun State, Ijebu-Igbo Judicial Division for determination on merit. I abide the order for costs.
Cases referred to in the judgment
Alhaji Saadu Olutinrin v. Alhaji Hanafi Agaka & Anor. (1998) 6 NWLR (Pt. 554)336.
Alhaji Yisau Agarawu v. Wema Bank Ltd. Chkwunto v. Caukwu & Ors. 14 WACA 34.
Amufule v. The State 4 SCNJ 69.
Benaplastic Industries Ltd. v. MV Anatoliy N. Vasilyeu (1999) 10 NWLR (Pt. 624) p. 620.
Chief Harold Sodipo v. Lemminkainen & Anor. (1992) 8 NWLR (Pt. 258).
Emeghara v. Health Management Board(Imo State) (1987 2 NWLR (Pt. 56) page 330.
Engr. Enterprises v. A.G. Kaduna State (1985) NWLR (Pt. 1) 17.
General Electric Co. v. Harry Akande (1999) 1 NWLR (Pt. 588) page 532 CA.
Gloria Gomwalk & Anor. v. The Military Administrator Plateau State & 6 Ors. (1998) 6 NWLR (Pt. 555) page 653.
House Iwo v. The Secretary, Iwo Local Government & Anor. (1999) 8 NWLR (Pt. 613) page 30.
Ishmael Amaefule, Cyril Amaefule v. The State (1988) 2 NWLR (Pt. 75) 156.
Morgan v. West African Automobile Eng. Ltd. (1971) NMLR 219.
Mr. Taiwo Ilori Ogun v. Mr. Moliki Akinyelu & Two Ors.
Mrs. Titilola Yewande Koku v. Foluso Olanrewaju Koku (1999) 8 NWLR (Pt. 616) page 67.
Obi v. Obi (1998) 4 NWLR (Pt. 544) page 51 CA;
Odumosu v. ACB. Ltd. (1976) 11 SC 55, 261.
Okafor v. A.G. Anambra State) (1991) 6 NWLR (Pt. 200) page 659.
OKorodudu v. Okoromadu (1977) 3 SC 21.
Olawore v. Olanrewaju (1998) 1 NWLR (Pt. 534) page 436.
Otegbola v. Esso (1966) All NLR 162.
Otunba Abdullateef Adebayo Owoyemi v. The Governor of Ogun State & Two Ors. (1993) 2 NWLR (Pt. 278) page 702.
Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) page 156.
Shodeinde v. The Ahmadiya Movement in Islam (1980) All NLR 64.
Standard Bank v. Ikomi (1972) All NLR 8.
UBA Ltd. v. Mudasiru Oladipo Ademuyiwa (1999) 11 NWLR (Pt. 628) page 570.
Wema Bank Ltd. v. Alhaji Yisau Agarawu .
Statute referred to in the judgment
Constitution of the Federal Republic of Nigeria, 1999.
Rule of Court referred to in the judgment
Order 24 rules 2 and 3 of High Court Civil Procedure Rules Ogun State 1998.
