Download PDF
The claimant took up a complaint against the defendants dated and filed on 5th June 2013 praying for – 1. A declaration that the claimant was prematurely retired from the employment of the defendant on 20th October 2008. 2. A declaration that the defendant is liable to pay to the claimant the sum of N2,952,060.00 (Two Million Nine Hundred and Fifty Two Thousand Sixty Naira) being early retirement benefits due to the claimant on account of his premature retirement by the defendant. 3. General damages in the sum of N3,000,000.00 (Three Million Naira) only. Accompanying the complaint are the statement of claim, list of witness, witness statement on oath, list of documents and copies of the documents. The defendant in reaction filed its memorandum of appearance, statement of defence, list of witness to be called at the trial, statement on oath of the defendant’s witness, list of documents to be relied upon at the trial and copies of the documents. Thereafter, the defendant filed a notice of preliminary objection dated 20th September 2013 but filed on 24th September 2013 challenging the competence of this action. The grounds upon which the preliminary objection is predicated are – 1) That there is a pending suit between the parties at the High Court of Lagos State Suit No. ID/614/2009. 2) That the pending suit at the High Court of Lagos State is on the same subject matter, same issues and same grounds as this suit. 3) That parties have exchanged pleadings in the pending suit at the High Court of Lagos State, the pre-trial conference has been concluded and parties have filed issues for determination. 4) That it is during the pendency of the said suit that the claimant instituted this suit against the defendant. In support of the preliminary objection is an affidavit with four exhibits attached (Exhibit A, the statement of claim in Suit No. ID/614/2009; Exhibit B, the statement of defence in Suit No. ID/614/2009; Exhibit C, the claimant’s formulation of the issues for determination in Suit No. ID/614/2009; and Exhibit D, the defendant’s formulation of the issues for determination in Suit No. ID/614/2009) and a written address. In its written address, the defendant framed one issue for the determination of the Court: whether from the evidence before the Court, this suit is not an abuse of court process and ought not to be dismissed. To the defendant, in the pending suit between the claimant and the defendant at the High Court of Lagos State and this suit, the issues to be determined are the same, the reliefs sought are founded on the same sets of facts giving rise to the suits and the subject matters are similar. That it has been held that an abuse of court process is a term generally applied to a proceeding which is wanting in bona fide where it is frivolous, vexatious and oppressive. It also means the improper use of legal process, referring to Okafor v. AG, Anambra State [1991] 6 NWLR (Pt. 200) 659 at 681, Arubo v. Aiyeleru [1993] 3 NWLR (Pt. 280) 126 at 142, 7Up Bottling Co. v. Abiola & Sons [1996] 7 NWLR (Pt. 463) 714 at 738 and Yakubu v. AS Co. Ltd [2010] 2 NWLR (Pt. 1177) 167 at 179. The defendant continued that an abuse of judicial process includes instituting multiplicity of actions on the same matter between the same parties simultaneously in different courts, even though on different grounds, citing Agwasim v. Ojichie [2004] 10 NWLR (Pt. 882) 613 at 622, Unifam Ind. Ltd v. Oceanic Bank Int. (Nig.) Ltd [2005] 3 NWLR (Pt. 911) 83 at 100 and NIMB Ltd v. UBN Ltd [2004] 12 NWLR (Pt. 888) 599 at 624. That it is also an abuse of court process to institute two similar suits against the same party and on the same subject matter, referring to Dumez (Nig.) Plc v. UBA Plc [2006] 14 NWLR (Pt. 1000) 515 at 526 F – G per Rhodes-Vivour, JCA (as he then was), FOM Plc v. UBA Plc [2010] 1 NWLR (Pt. 1176) 583 at 597 – 598 D – B per Abdullahi JCA, Saraki v. Kotoye [1992] 9 NWLR (Pt. 264) 156 at 188 per Karibi-Whyte, JSC, Okorodudu v. Okoromadu [1977] 3 SC 21 and Oyegbola v. EssoWest Africa Inc. [1966] 1 All NLR 170. To the defendant, a Court of law is as well a Court of justice and will always prevent the improper use of its machinery and will not allow it to be used as a means of vexatious and oppressive behaviour in the process of litigation. That where the Court comes to the conclusion that its process is abused, the proper order is that of dismissal of the process, citing African Reinsurance Corp. v. JDP Construction (Nig.) Ltd [2003] 13 NWLR (Pt. 838) 609 at 636, Kode v. Alhaji Yusuf [2001] NWLR (Pt. 703) 392 at 411, Arubo v. Aiyeleru [1993] 3 NWLR (Pt. 280) 126 at 142 and Wills v. Earl of Beauchamp (1886) 11 Probate 59. In conclusion, the defendant submitted that in this suit, the evidence before the Court, even on the showing of the claimant in the statement of claim, is that there are two suits instituted by the claimant now pending in two Courts. This makes this suit an abuse of process. The defendant then urged the Court to dismiss it. In reaction to the defendant’s preliminary objection, the claimant filed a counter-affidavit of 16 paragraphs and a written address, both dated and filed on 22nd January 2014. The sole issue framed by the claimant for the determination of the Court is whether the instant suit is an abuse of court process. To the claimant, it is common ground that he filed Suit No: ID/614/2009 at the High Court of Lagos State. That in the said suit, he is seeking reliefs that pertain and touch on the employer-employee relationship which existed between himself and the defendant, having served as the defendant’s Personnel Manager for several years. That pleadings were filed and exchanged between the parties and the suit advanced to the pre-trial conference stage after which they said pre-trial conference was closed and the suit was to proceed to trial. However, that by no fault of his, the National Assembly amended the Constitution vide the Third Alteration to the 1999 Constitution which significantly provided for section 254C(1), the jurisdiction section of the National Industrial Court (NIC) and which divested the High Court of jurisdiction over employment and labour cases. To the claimant, it is instructive to note that he had approached the High Court of Lagos State in 2009 pursuant to the High Court’s constitutionally guaranteed powers under section 272 of the 1999 Constitution. He then submitted that the position with respect to constitutional amendments and its effect on the Court’s jurisdiction has been laid to rest by the Supreme Court decision in Isaac Obieweubi v. Central Bank of Nigeria [2011] 7 NWLR (Pt. 1247) 465. In the said case, the Supreme Court per Rhodes¬-Vivour, JSC at 495 B – E held as follows – The law in force or existing at the time a cause of action arose is the law applicable for determining the case. This law does not necessarily determine the jurisdiction of the Court at the time jurisdiction is invoked. That is to say, the law in force at the time a cause of action arose governs the determination of the suit, while the law in force at the time of the trial based on cause of action determines the Court vested with jurisdiction to try the case, In the instant case, Decree 107 of 1993 came into force on 17-11-1993. Decree 107 of 1993 denied the State High Court of jurisdiction as from 17-11-1993 and transferred jurisdiction on the matters in S. 251 of the Constitution to the Federal High Court. As from 17-11-1993, the State High Court no longer had jurisdiction. A litigant who had a cause of action in 1990 would have his case governed by law at the time i.e. 1990. If trial had commenced before 1993, the Court to try the case would have been the State High Court but after 17-11-1993 the case would be tried in the Federal High Court. The claimant went on that the facts and principles applicable in the case of Obieweubi v. CBN are present in this suit. That he commenced Suit No: ID/614/2009 when the High Court of Lagos State possessed requisite jurisdiction under section 272 of the 1999 Constitution. That as at 4th March 2011, the State High Court no longer had jurisdiction to entertain his case. Consequently, he filed this suit at the NIC. That the High Court of Lagos State cannot and could not competently adjudicate over his suit. The suit became dead with the absence of jurisdiction in the State High Court, placing reliance on the following cases on the importance of jurisdiction: AG, Federation v. Guardian Newspapers [1999] 9 NWLR (Pt. 618) 187 at 233D, Madukolu v. Nkemdilim [1962] 1 All NLR 587; [1962] 2 SCNLR 341, Ohai v. Akpoemonye [1999] 1 NWLR (Pt. 588) 521 at 530E, Ukatta v. Ndinaeze [1997] 4 NWLR (Pt. 499) 251 at 276G, Ajayi v. Milad, Ondo State [1997] 5 NWLR (Pt. 504) 237 at 258F and Ukwu v. Bunge [1997] 8 NWLR (Pt. 518) 527 at 544 B – D. The claimant continued that he is no longer pursuing the said suit which has died a natural death and by reason of its demise had become academic and hypothetical. That it is indeed trite that the Court does not entertain academic and hypothetical suits/issues, placing reliance on the following cases: Shettima v. Goni [2011] 18 NWLR (Pt. 1279) 413 at 455E, Ogudo v. State [2011] 18 NWLR (Pt. 1278) 1 at 24H, Taiwo v. Adegboro [2011] 11 NWLR (Pt. 1259) 562 at 584E and Ayodele v. State [2011] 6 NWLR (Pt. 1243) 309 at 323A. The claimant submitted that this Court is duty bound to take judicial notice of all laws in the country, particularly the Constitution. Therefore, by necessary implication, this Court is empowered to review and determine as in this case that the suit of the claimant filed in 2013, a period of 2 years after the coming into force of the Third Alteration to the 1999 Constitution was regularly filed in the National Industrial Court particularly in the absence of evidence of simultaneous pursuit of this suit and Suit No: ID/614/2009 or malice on the part of the claimant, relying on the following authorities: section 122(2)(a) of the Evidence Act 2011 and Olawunmi v. Mohammed [1991] 4 NWLR (Pt. 186) 516 at 527, where it was held as follows – On very careful consideration, I am forced to the conclusion that to amount to an abuse of process, the proceedings or step in the proceeding complained of will, in any event, be lacking in bona fides. It has to be an improper use or perversion of process after it has been issued. The term, abuse of process, has an element of malice on it. It has thus to be malicious perversion of a regularly issued process, civil or criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby. The defendant argued in paragraph 4 of its written address that the instant suit is an abuse of court process having regard to the pendency of Suit No: ID/614/2009. To the claimant, the point missed by the defendant is that abuse of court process lies essentially in the simultaneous pursuit of the multiple suits by one party against another or others which said simultaneous pursuit is malicious and calculated to interfere with the judicial process. In other words, the emphasis for abuse of court process is the simultaneous pursuit of an action and the underlying malice. That the question of abuse of court process is one of fact. That the defendant who has alleged abuse of court process against the claimant has the evidential burden of proving that the claimant is simultaneously pursuing both this suit and Suit No: ID/614/2009 maliciously in order to irritate, annoy and vex the defendant. That the defendant must also establish that such pursuit was intentional and borne out of malice. The defendant can only discharge this burden by establishing by means of credible evidence to wit: record of proceedings in Suit No: ID/614/2009 that the claimant at the time of filing this Suit on 5th June 2013 and thereafter has made Court appearances or taken steps in Suit No: ID/614/2009 to the irritation, annoyance and inconvenience of the defendant, placing reliance on the following cases: IBWA v. Sasegbon [2007] 16 NWLR (Pt. 1059) 195 at 214B, Devine Ideas Ltd v. Umoru [2007] All FWLR (Pt. 380) 1468 at 1505 B – C and Orji v. DTM (Nig) Ltd [2009] 18 NWLR (Pt. 1173) 467 at 493E. The claimant further submitted that the cases of Dumez (Nig) Plc v. UBA Plc and FOM v. UBA Plc relied upon by the defendant are distinguishable from this case. That in those cases, there was simultaneous pursuit of the same reliefs against the same parties. In the instant case, the claimant is not engaged in simultaneous pursuit of both Suit No: ID/614/2009 and the instant suit. As a matter of fact, that the instant suit was filed as a result of loss of jurisdiction by the State High Court over Suit No: ID/614/2009. That it is trite that where there is no jurisdiction there is no action. That in the cases of Dumez (Nig) Plc v. UBA Plc (supra) and FOM Plc v UBA Plc, the Court of Appeal emphasized the simultaneity of the pursuit of both cases as being crucial to the finding of abuse of court process. Finally, the claimant submitted that no evidence has been placed before this Court that the claimant simultaneously filed both Suit No. ID/614/2009 and the instant suit. Furthermore, that no evidence has been placed before this Court that the claimant is simultaneously pursuing both suits. That abuse of process is a matter of fact. If the facts, as in this case, show that the claimant is not simultaneously pursuing both suits, then this Court can only arrive at one conclusion, to wit: there is no abuse of court process. He then urged the Court to resolve this issue in his favour and proceed to set down this suit for trial on the merits. The claimant accordingly urged the Court to dismiss the defendant’s preliminary objection for lacking in merit and being a deliberate attempt to further delay the speedy trial of this suit. The defendant did not file any reply on points of law. I heard learned counsel and considered all the processes filed in this case. The sole issue before the Court is whether the instant action is an abuse of court process given Suit No. ID/614/2009 filed at the High Court of Lagos State. There is no argument on the part of the claimant that he filed Suit No. ID/614/2009 and that while that suit existed, he filed the instant case. The claimant is also not arguing that the issues in both cases are not the same; the claimant actually concedes that the issues are the same. The argument of the claimant is that since the promulgation of the Third Alteration to the 1999 Constitution, the High Court was divested of jurisdiction and so almost automatically the High Court lacked jurisdiction over Suit No. ID/614/2009. In the words of the claimant, “it is trite that where there is no jurisdiction there is no action”. So his filing the instant suit must be read not to be an abuse of court process. In any case that abuse of court process lies essentially in the simultaneous pursuit of the multiple suits by one party against another or others which said simultaneous pursuit is malicious and calculated to interfere with the judicial process, quoting Dumez (Nig) Plc v. UBA Plc (supra) at pages 526 – 527 G – D, which states – The rule is that where matters involving the same issues are raised contemporaneously in two different courts, it is desirable and clearly in the interest of justice that these two matters be heard only in one of these two courts. It is designed to avoid multiplicity of proceedings. The basis of the rule is the real possibility of two conflicting decisions in respect of one and the same subject matter. In such a situation, it is desirable that the issues common to both matters are tried in only one court...It is so obvious that Suit Nos. LD/2845/2001 and FCT/HC/CV/130/2002 have the same subject matter, issues and parties. The proper course for the appellant would be to file defence and counter-claim in Suit No. LD/2845/2001 rather than file a new suit, FCT/HC/CV/130/02. The filing of FCT/HC/CV/130/02 amounts to an abuse of process and if allowed to go on while Suit No. LD/2845/2001 is also in progress there is real possibility of two conflicting judgments with litigants at liberty to accept the judgment favourable to them. I do not see how this case (Dumez) is authority for the claimant’s proposition as to simultaneity of the pursuit of both cases as being crucial to the finding of abuse of court process. In other words, that the claimant is expected to be appearing in both cases before a charge of abuse of court process can be laid. The simple question to be answered is whether there is multiplicity of suits. In the instant case, the answer is in the affirmative. The claimant himself acknowledged this; the only thing is that he seeks to rationalise the existence of the two suits. The law is that multiplicity of actions which involve the same parties and the same subject matter amount to abuse of court process and a court is duty bound to stop such abuse. See Pavex International Co. Ltd v. IBWA [1994] 5 NWLR (Pt. 347) 685, Okorodudu v. Okoromadu [1977] 3 SC 21 at 32, COP v. Fasehun [1997] 6 NWLR (Pt. 507) 180 – 181 and Chief Ohwovwioghor Ikine v. Chief Olori Edjerode [2001] SC 43. And by Chief Victor Umeh & anor v. Prof. Maurice Iwu (Chairman INEC) & 3 ors [2008] 2 – 3 SC (Pt. I) 135, it is settled law that for there to be an abuse of court process, there must exist a multiplicity of suits between the same parties on the same subject matter and on the same issues which pre-conditions are mutually inclusive as they are conjunctive. Furthermore, it is an abuse of the judicial process for a plaintiff to file a notice of discontinuance so that he may have his way in a new suit. See Olawole v. Olanrewaju [1998] 1 NWLR (Pt. 534) 436 at 455. The authorities go on to state that a trial court has jurisdiction to strike out a matter with an order barring the applicant from instituting the same action where, for instance, an enabling statute or law so specifically provides or when the matter being struck out is an abuse of judicial process. See Registered Trustees of Ifeloju v. Kuku [1991] 5 NWLR (Pt. 189) 65. In order to determine whether an abuse of the judicial process has occurred, Agwasim v. Ojichie [2004] 10 NWLR (Pt. 882) 613 laid down that the Court is expected to consider the content of the first process vis-à-vis the second to see whether they are aimed at achieving the same purpose. See generally, Alhaji Lateef Akinsola v. National Union of Road Transport Workers (NURTW) & ors [2013] 33 NLLR (Pt. 96) 399 NIC, where this Court had cause to review and apply these principles. In the instant case, there is no doubt that the instant case and Suit No. ID/614/2009 exist and are between same parties with the same issues for adjudication. The rationalization of the claimant is that in virtue of the Third Alteration to the 1999 Constitution divesting the High Courts of jurisdiction over labour and employment cases, he cannot be said to have abused the court process by filing the instant action even when Suit No. ID/614/2009 has not been formally struck out. Here the claimant forgot that he ought to have formally applied for the transfer of the case to this Court on the authority of Echelunkwo John & 90 ors v. Igbo-Ekiti LGA [2013] 7 NWLR (Pt. 1352) 1 especially at 14 – 17; and if the transfer is refused, to appeal against the refusal or, if he is still within time, to formally discontinue that suit before filing the instant case. As it is, the instant suit and Suit No. ID/614/2009 co-exist and so make the instant case an abuse of court process; and I so find and hold. The instant case is accordingly an abuse of court process and so is hereby struck out. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip