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CHIEF E. A. ADEFEYISAN V. MADAM LATIFAT ODEGBESAN & ANOR
IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 28TH DAY OF FEBRUARY, 2020
BEFORE THEIR LORDSHIPS
JIMI OLUKAYODE BADA, JSC
HARUNA SIMON TSAMMANI, JSC
FOLASADE AYODEJI OJO, JSC
CHIEF E. A. ADEFEYISAN – Appellant(s)
1. MADAM LATIFAT ODEGBESAN
2. MR. WAHAB ODEGBESAN
(For and on behalf of Madam Kehinde Odubanjo& Family)Respondent(s)
S. A. ONADELE with him, B. A. ONADELE. – For Appellant
AND MR. JIMOH ADEKUNLE. – For Respondent
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment):
This is an interlocutory appeal against the ruling of the High Court of Ogun State, Ijebu-Ode Division in Suit No: HCJ/51/2009 BETWEEN: (1). MADAM LATIFAT ODEGBESAN (2). MR. WAHAB ODEGBESAN (for and on behalf of MADAM KEHINDE ODUBANJO Family) AND (1). MR. TOKMOS ALESE (2). MR. SEIDI MUSTAPHA ALESE (3). OLAITAN (ELELEDE) (4). MR. OLAITAN (POLICE) (5). MR.& MRS. OLUSEGUN ONI (6). CHIEF E. A. ADEFEYISAN (APPELLANT) (7). PRINCE ADEOLU G. ADESANYA (8) MR. ADEMOLA ADESANYA (9). MR. SAFIRIYU O. ALATISHE delivered on the 11th day of January, 2016 wherein the application of the Appellant for stay of execution of Judgment among others was dismissed.
Briefly the facts of the case are that by a writ of summons and statement of claim filed on 9th June, 2009 at the lower Court, the Claimants now Respondents claimed for themselves and on behalf of Madam Kehinde Odubanjo family as follows:
(a) A declaration that the Defendants, their agents, privies or servants are trespassers and continuing trespassers on the Claimants land situate and being at Idoro Village via Ijebu-Ode, Ogun State.
(b) The sum of (N200,000,000.00) Two Hundred Million Naira being special and general damages jointly and severally from the Defendants, their agents, servants and/or privies for acts of trespass and continuing trespass on the claimants land as aforesaid
(c) A perpetual injunction restraining the Defendants, their agents, servants and or privies from committing further acts of trespass on the subject matter of this action.
(d) And for such further consequential order or other orders as will be necessary in this case to give effect to the Claimants reliefs.
Pleadings were duly exchanged between the parties and the case was heard at the lower Court.
In a Judgment delivered on the 28th day of October, 2013, the trial Court adjudged the defendants to be trespassers. The Court made an order of perpetual injunction against the Defendants and awarded a sum of N540,000.00 as general damages jointly and severally against all the defendants together with cost of N45,000.00 awarded jointly and severally against all the defendants.
The 6th Defendant/Appellant who was dissatisfied with the Judgment expressed desire to lodge an appeal against the Judgment, but the appeal could not be filed within the statutory period.
The Appellant therefore filed an application before the Court of Appeal for extension of time to appeal. The application also sought for an order for stay of execution of the Judgment of the lower Court pending the determination of the Appeal.
While the Appellants application for extension of time within which to appeal and stay of execution of Judgment was pending in the Court of Appeal, the Appellant again filed another application for stay of the said judgment at the lower Court amongst other prayers. This according to the Appellant was because execution was effected and his movable asset was attached.
The learned trial Judge raised the issue of the application filed by the appellant for stay of execution suo motu.
The learned Counsel for the Appellant addressed the lower Court although Counsel for the Respondent was absent.
The lower Court eventually dismissed the Appellants application.
The Appellant who was miffed by the decision of the lower Court appealed to this Court.
The learned Counsel for the Appellant formulated two issues for the determination of the appeal. The said issues are reproduced as follows:-
(1). Whether an infraction of the Appellants Constitutional right of fair hearing was not caused by the learned trial Judge when he raised suo motu the issue of the application before the Court being in abuse of the process of the Court and thereupon dismissed the application without its consideration on the merit. (Distilled from grounds 1&2)
(2). Whether the learned trial Judge was right when he held that Appellants application filed 12/8/2015 was in abuse of the process of the Court and proceeded to dismiss it without consideration on its merit. (Distilled from grounds 3, 4 and 5).”
The learned Counsel for the Respondents adopted the two issues formulated on behalf of the Appellant for the determination of the appeal.
At the hearing of the appeal on 20th day of January, 2020, the learned Counsel for the Appellant stated that the appeal is against the ruling of the Ogun State High Court which was delivered on 11th day of January, 2016. The notice of appeal was filed on 25/1/2016.
The Appellants brief of argument was filed on 19/2/2016. The Appellants reply brief was filed on 12/4/2016.
The learned Counsel for the Appellant adopted and relied upon the said Appellants brief of argument as well as the appellants reply brief of argument as his argument in urging that the appeal be allowed.
The learned Counsel for the Respondents on the other hand also referred to the Respondents brief of argument filed on 30/3/2016. He adopted the said Respondents brief as his argument in urging that the appeal be dismissed.
ISSUES NOS. 1 & 2 (Taken Together)
The learned Counsel for the Appellant stated that the application filed at the lower Court was filed with a view to arrest the writ of attachment issued and execution levied on his movable asset during the pendency before the Court of Appeal of his application for stay of execution of the judgment.
It was also stated on behalf of the Appellant that the Respondents who were aware of the pendency of the said application for stay, instigated execution of the Judgment to overreach the Appellant. He argued that the proceedings of the lower Court showed that at the time the proceedings took place, the Respondents though served through their Counsel, did not appear in Court in response to the application nor reacted in any other manner to the application.
It was contended on behalf of the Appellant that the learned trial Judge raised an issue suo motu as to the application being an abuse of the process of the Court having regard to the appellants application pending before the Court of Appeal attached as Exhibit A to the Appellants application. At the conclusion of address by learned Counsel for the Appellant, the lower Court dismissed the application.
It was submitted on behalf of the Appellant that the manner in which the lower Court raised the issue and determined the application before the Respondents appeared to contest the case is an infraction of the Appellants Constitutional Right of fair hearing as enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.
He relied on the following cases:-
– AKINFE VS STATE (1988) 3 NWLR part 85 page 729 at page 741 Paragraphs D F.
– TRADE BANK PLC VS CHAMI (2004) ALL FWLR part 235 page 118 at 147 Paragraph H.
– DEF LAM & CO. LTD VS OSUN STATE GOVERNMENT (2006) 2 NWLR part 964 page 211 at 219 Paragraph H
– BARIGHA VS P.D.P. (2013) ALL FWLR page 414.
– CEDAR STATIONARY PRODUCTION LTD VS IBWA LTD (2000) FWLR part 25 page 1710.
– MOBIL PRODUCING NIG. UNITED VS. LASEPA (2003) FWLR PART 137 PAGE 1029.
– ARGOS NIGERIA LTD VS. UMAR (2003) FWLR PART 155 PAGE 653 AT 795.
The learned Counsel for the Appellant submitted that the two applications are dealing with different situations and that it cannot be said that abuse of Court process is latent on the face of the second application to justify intervention by the Court suo motu.
He went further in his submission that the trial Court by dismissing the application of the Applicant without waiting for the Respondents to raise an issue which is not evident on the face of the process before him deprived the Appellant of the right to present his case for determination on its merit resulting in an infraction of his right of fair hearing.
He relied on the case of:-
– COMPTOIR COMMERCIAL & IND. S.P.R. LTD. VS. OGUN STATE WATER CORPORATION (2002) FWLR PART 105 AT 839 PARTICULARLY AT 851E – 852A.
Learned Counsel for the Appellant urged that this issue be resolved in favour of the Appellant.
The learned Counsel for the Respondents in his response to the submission of Counsel for the Appellant submitted that Counsel for the Appellant was directed to address the Court on the issue whether the application before the Court constitutes an abuse of Court process. Therefore, that the submission of the learned Counsel is misleading. He relied on the following cases of:-
– BOOTHIA VS. FAREAST (2001) 3 MJSC page 44 AT PARAGRAPHS F G.
– LADO & ORS VS. CPC & ORS (2011) 12 PART II MJSC PAGE 101 AT 124 PARAGRAPHS E G.
Learned Counsel for the Respondents referred to page 103 lines 19 to 22 of the Record of Appeal. He urged that this issue No.1 be resolved in favour of the Respondents.
In his Reply Brief of Argument, the learned Counsel for the Appellant submitted that it is not that he was not heard, but in so far as the point raised cannot be said to be glaring on the face of the motion paper. In the absence of the Respondents, the trial Court ought to have waited until the Court is moved on the motion by the Appellant.
He relied on the case of:- EFFIOM VS. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION (2010) ALL FWLR PART 552 PAGE 1610 AT 1634 G.
On Issue 2, it was submitted on behalf of the Appellant that the learned trial judge came to the wrong conclusion when he held that the application before him constitutes an abuse of the process of the Court in relation to the process pending before the Court of Appeal.
He referred to the application filed in this Court for enlargement of time to appeal and stay of execution.
It was contended on behalf of the Appellant that while the application for enlargement of time to appeal and stay of execution was pending in this Court, execution was levied on the appellant on 5/4/15 and he was impelled to file the second application before the lower Court in which he sought for the following orders:-
(1). An order setting aside the Writ of Attachment dated 4th August, 2015 and all execution processes carried out on 5th August, 2015 in this matter in so far as the Applicant is concerned.
(2). An order that the Appellants motor car No. TTN 397 AA attached in execution by the Sheriff and Bailiffs of the High Court of Justice, Ijebu-Ode on 5th August, 2015 be released forthwith.
(3). An order staying the execution of Judgment of this Honourable Court until the determination of the Applicants application pending before the Court of Appeal dated and filed on 11/2/14.
(4). An order that the Respondents shall reimburse the Applicant with damages and incidental expenses incurred in connection with the said wrongful execution and these proceedings to be assessed in such manner as this Honourable Court may deem fit.
The learned Counsel for the Appellant argued that the Respondents were yet to contest the application when the trial Court, suo motu initiated the question whether or not, the application was in abuse of the process of Court.
It was submitted on behalf of the Appellant that what the Law abhors is not the filing of two processes per se on the same subject matter in one Court or different Courts but their improper use to harass, irritate or annoy the opponent and thereby interfere with the cause of justice. He relied on the following cases:-
– SARAKI VSKOTOYE (1992) 9 NWLR PART 264 PAGE 156 AT 188 Paragraphs F TO G.
– CBN VS AHMED (2001) FWLR PART 56 PAGE 670.
– OPEKUN VS SADIQ (2003) FWLR PART 150 PAGE 1654 AT 1661 TO 1662 PARAGRAPHS H A.
– CHIEF UMEH VS PROF IWU (2008) ALL FWLR PART 418 PAGE 362 AT 393-394 PARAGRAPHS G TO C.
– OKONKWO VS U.B.A PLC (2003) FWLR PART 140 PAGE 1736 AT 1746 1747 PARAGRAPHS H TO B.
– ARGOS NIGERIA LTD VS UMAR (2003) FWLR PART 155 PAGE 653.
It was submitted further on behalf of the Appellant that the process of Court rather than being abused was employed legitimately.
In his response, the learned Counsel for the Respondents submitted that the application refused by the lower Court constitute an abuse of the process of Court. He referred to the case of ARC VS JDP (2003) 5 MJSC PAGE 121 PARAGRAPHS E – G.
It was contended that the Applicants application dated 11/8/15 contravenes the provision of Order 7 Rules 3 and 4 of the Court of Appeal Rules 2011.
Learned Counsel for the Respondents urged that this issue No. 2 be resolved in favour of the Respondents.
In his reply brief of argument, the learned Counsel for the Appellant submitted that in these days of doing substantial justice by adopting fast procedures for speedy trials, it is therefore in order for the Court to entertain all the prayers on the application before the Court of Appeal and that there will be no abuse of Court process.
This is an interlocutory appeal from the Ruling of High Court of Justice, Ijebu-Ode Division in Ogun State of Nigeria.The ruling was delivered on 11/1/2016 in respect of an application filed on 12/8/2015 for the following orders:-
(1). An order setting aside the writ of attachment dated 4/8/2015 and all execution processes carried out on 5/8/2015 in this matter in so far as the Appellant is concerned
(2). An order that the Appellants motor car NO.TTN 379 AA attached in execution by the Sheriff and Bailiffs of the High Court of Justice, Ijebu-Ode on 5/8/2015 be released forthwith.
(3). An order staying Execution of Judgment of this Honourable Court until the determination of the Applicants application pending before the Court of Appeal dated and filed on 11/2/2014.
(4). An order that the Respondents shall reimburse the Applicant with damages, costs and incidental expenses incurred in connection with the said wrongful execution and these proceedings to be assessed in such manner as this Honourable Court may deem fit …
Prior to filling of the application above, the Appellant had earlier filed an application before this Court on 11/2/2014 in which he prayed for the following reliefs among others:
(1). An order enlarging the time within which to appeal against the final Judgment of the High Court of Ogun State, Abeokuta Judicial Division dated 28/10/2013 in Suit No HCJ/15/2009 (otherwise called HCJ/51/2009 between – MADAM LATIFAT ODEGBESAN & ANOR VS. TOKMOS ALESE & ORS of which applicant was the 6th defendant.
(2). An order staying the execution of the said Judgment pending the determination of the appeal
I have to point it out at this juncture that Judgment in the substantive action was delivered on 28/10/2013, and the appellant failed to appeal against the Judgment within the mandatory period of 90 days allowed by Section 24 (2) (a) of the Court of Appeal Act and the Constitution of the Federal Republic of Nigeria 1999(as amended).
The failure to appeal to the Court of Appeal within the mandatory period made the Appellant to file an application for enlargement of time within which to appeal and stay of Execution of the Judgment of the lower Court.
Unfortunately, the application for enlargement of time within which to appeal was pending in this Court when the Respondents applied to the lower Court to execute the Judgment in the substantive suit delivered on 28/10/2013. The lower Court granted the execution and execution was carried out on 4/8/2015.
As a result of the applicant asking for the same relief among others before the lower Court as the application pending at the Court of Appeal, the trial Judge asked Counsel for the applicant to address him on whether the instant application is not an abuse.
The issue for determination in this appeal is whether an infraction on the Appellants constitutional right of fair hearing was not caused by the learned trial Judge when he raised suo motu the issue of the application before the Court being an abuse of the process of the Court and thereupon dismissed the application without its consideration on the merit.
In this appeal, the Appellant already filed an application before this Court in which he sought for extension of time to appeal and stay of execution of the Judgment of the lower Court. With that application pending, the Appellant went before the lower Court to ask for the same relief of stay of execution of the Judgment of the lower Court among others.
The trial Judge directed the Counsel for the parties to address him on whether the instant application before him was not an abuse.
The learned Counsel for the Appellant addressed the lower Court but Counsel for the Respondent was absent despite being aware of the application coming up before the lower Court.
There is no doubt in the fact that the issue was raised suo motu by the learned trial Judge and he ruled upon it after being addressed by Counsel for the Appellant.
In the case of:- UNIVERSITY OF CALABAR VS. ESSIEN(1996) LPELR SC 188/1991, the Supreme Court strongly deprecated the practice of a Court taking up a point suo motu and making it basis of its decision without hearing the parties on it.
Also in – EHOLOR VS. OSAYANDE (1992) LPELR-SC 142/1989, the Supreme Court stated that our system of appeals in our adversary system does not permit a Court to dig into the records and fish out issues, no matter how patently obvious and without hearing the parties use it to decide an issue in controversy between the parties to the appeal. It runs counter to the impartial status and stance expected of a Judge in the system. If the issue is so fundamental that it goes to the jurisdiction or vires of the Court then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided.
See also the following cases:-
– VICTINO FIXED ODD LIMITED VS. OJO (2010) ALL FWLR PART 524 PAGE 39.
– LONGE VS. F.B.N. (2010) ALL FWLR PART 525 PAGE 258 (SC).
– SANI VS. KOGI STATE HOUSE OF ASSEMBLY (2019) LPELR 46404 (SC).
– EGBUCHU VS. CONTINENTAL MERCHANT BANK PLC. (2016) 8 NWLR PART 1513 PAGE 192.
The position of the law is that a Court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so, the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict.
The saving grace in this case is that the learned trial Judge called on Counsel for the Appellant to address the Court before deciding on the issue raised.
The next question to be answered is whether the similar application brought before the lower Court is an abuse of Court process to the one already pending before this Court.
What is abuse of Court Process?
The Blacks Law Dictionary Ninth Edition at page 10 gave the definition of the word abuse as “A departure from legal or reasonable use; misuse.”
The phrase Abuse of Process was also defined on page 11 as:- The improper and tortuous use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the processs scope.”
The term abuse of Court process also means that the process of Court has not been used bonafide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and efficient and effective administration of Justice. It is multiplication of the same action in the same Court being pursued simultaneously by a party in an action.
In CHIEF B.A. ALLANAH & ORS VS. MR. KANAYO KPOLOKWU & ORS (2016) LPELR 40724 (SC) (2016) 6 NWLR PART 1507 PAGE 1, it was held among others that the common feature of abuse of process of Court centers on improper use of Judicial process by a party in litigation aimed or targeting on interference with due administration of Justice. To my mind, some of the features of abuse of Court process include the under mentioned features, even though they are by no means exhaustive. These features are:-
(i). Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous action on the same matter between the same parties even where there is in existence, a right to commence the action.
(ii). Instituting different actions between the same parties simultaneously in different Courts even though on different grounds.
(iii). Where two or more similar processes are used in respect of the exercise of the same right for instance, a cross appeal and as Respondents notice.
(iv). Where two actions are instituted in Court, the second one asking for relief which may however be sustained in the first, the second action isprima facie vexatious and an abuse of Court process.”
See the following cases:-
– OKOROCHA VS PDP (2014) 7 NWLR PART 4406 PAGE 213.
– SARAKI VS KOTOYE (1990) 4 NWLR PART 143 PAGE 144.
– OGOEJEOFO VSOGOEJEOFO(2006) 3 NWLR PART 996 PAGE 206.
In this appeal, in view of the position of the law enumerated above, I am of the view that the lower Court was right after listening to address by Counsel for the Appellant in holding that the application before the lower Court which sought for the same relief (i.e. stay of execution) as the application before this Court in Suit No CA/M45/14 between the same parties will likely result in an abuse of Court process.
Before I conclude in this appeal, it is of interest to note that there is no pending appeal before this Court.
The law is that the Court in exercising an appellate jurisdiction can only determine issues that arose out of complaints from the Judgment/Ruling of the lower Court, in respect of which notice and grounds of appeal were filed and submitted for adjudication. In other words, the Court of Appeal can only determine issues that arose out of complaints from Judgment of the High Court in respect of which notice and grounds of appeal were filed and submitted for adjudication.
No Court has inherent appellate jurisdiction. It is created only by Statute or the Constitution. See – ISIAKA VS. OGUNDIMU (2006) 13 NWLR PART 997 PAGE 401.
Consequent upon the foregoing, this issue Nos. 1 & 2 are hereby resolved in favour of the Respondents and against the Appellant.
In the result, from the circumstances of this appeal, I am of the view that the entire processes filed on behalf of the Appellant is a nullity.
The appeal is hereby struck out.
There shall be no order as to costs, each of the parties are to bear their own costs.
JUDGMENTS BY AREAS OF PRACTICE
JUDGMENTS BY PRACTICE/PROCEDURE ISSUES