Multiplicity Of Actions, An Abuse Of Court Process

In The Court Of Appeal, Holding At Lagos On Monday The 6th Day Of July, 2010 – 11-19.

Before Their Lordships:

Adzira Gana Mshella, Justice, Court Of Appeal Hussein Mukhtar, Justice, Court Of Appeal

Between

HRM Oba Rilwan Oluwalambe

Taiwo                                                              – Appellants

I/: Commander Wale Ojo Rtd.

And

1.         Mr. Isaac Akinbolaji   – Respondents

2.         Temidayo Akinbolaji 

I  have carefully exam

            ined the pleadings filed and exchange by the parties in the two actions ID/787/04 and ID/727/05. The subject matter in both suits is the property known as No.1 Okegbenro street, Ojokoro. The issue at stake in both suits is the ownership of the said property. The relief claimed in both suits are substantially the same. The relief are for the declaration of title, damages for trespass and injunction against repetition of trespass.

From the facts and circumstances of the case, the question to be resolved is whether the filing of suit No. ID/727/05 by the respondent constitute an abuse in instituting a multiplicity of actions on the same subject matter against the same opponents leading judgment by his Lordship A.G. Mshella, JCA, with his learned brothers, H. Mukhtar and Ajuaro, JJCA, concurring while allowing the appellants appeal. The parties were represented by Chief S. Ayeni for the respondents. The facts are as contained in the body of the judgement.

The respondents were the claimants in suits ID/727/05 as the High Court of Lagos State in which suit the respondents claimed against the defendants now appellants in statement of claim paragraph 43 as follows:

Declaration order that the property No.1 Okegbenro Street, Jankara, Ojokoro Lagos State belongs to the 1st claimant who legitimately bought same from the nightful owner.

A declaratory order that the 1st claimant is the holder of statutory right of occupancy under the Land Use Act Cap 2002 Laws of the Federal Republic of Nigeria 1990 in respect of the land or parcel of land in dispute which is property No. 1 Okegbenro Street, Jankara, Ojokoro Lagos State.

A declaration that 1st defendant or any other person is illegal , unlawful, null and void and of no effect whatsoever.

The respondents filed a joint statement of claim, list of witnesses to be called at the trial; written statement on oath of the 5 witnesses listed by the correspondents; and list and copies of documents to be tendered at trial as exhibits. The 1st appellant in defence of the respondents claims against them filed a statement of defence and counter-claim; list of his intending witnesses, list and copies of documents to be tendered at trial as exhibits 2nd respondents writ of summons and statement of claim. At the close of pleadings, respondents and 1st appellant attend pre-trial conference, whereupon the parties formulated and submitted issues for determination in their respective opinion to the pre-trial judge. During the pre-trial conference, 1st appellant brought in application dated 5th July 2006, pursuant to Order 37  Rules 7(2) and (3) AND Order 39, Rule (1) of the High Court of Lagos State (civil procedure) Rule, 2004, asking for:

An order dismissing the respondents suit for constituting abuse of process of court.

Or, an order staying proceedings in this suit pending the direction of the Honourable Chief Judge of Lagos State for the transfer and/or consolidating of this suit with suit No. ID/787/04: HRM Oba Rilwan Oluwalambe Taiwo v. Mr. Isaac Akinbolaji & Anor. Now before the Honourable Justice K.O. Alogba sitting at High Court Ikeja.

The grounds for the application are as follows:

There is pending before the Honourable Justice K.O. Alogba suit No. ID/787/04: Oba Rilwan Oluwalambe Taiwo v. Mr. Isaac Akinbolaji & Anor. Which is first time to this suit and bearing on the same subject matter, to its ownership of No. 1 Okegbenro Street, Ojokoro, Lagos State.

The claimants in this suit who are defendants in suit No. ID/787/04 have counter claim for similar relief claimed in this suit.

The parties in suit No. ID/787/04 are substantially the same as the parties in this suit.

This suit by the combined effect of points (1) (2) and (3) translate to an abuse of the process of court.

Being an abuse of process. This Honourable Court is divested of jurisdiction to entertain the action.

The tendency of these similar suits has been brought to the attention of the Honourable Chief Judge of Lagos State for his direction.

The respondents filed a counter-affidavit to the 1st appellants application. The learned trial judge in a considered ruling delivered on 29th of November, 2006 dismissed the 1st appellants application.

Dissatisfied with the ruling of the lower court, the appellants appealed to this court by filling notice of appeal. The appellants filed three grounds of appeal from which they distilled one issue for the determination of this court. The sole issue read thus:

“Whether circumstances indicative of abuse were not present in suit No. ID/727/05 simply because 2nd appellant who derived his title from the 1st appellant is not a party to suit No. ID/787/04”.

Respondents on the other hand distilled sole issue from the ground of appeal filed by the appellants as follows:

“Whether in the light of the available evidence before the lower court, suit No. ID/727/05 constitutes an abuse of court process which ought to lead to the respondents’ case dismissal? In arguing the appeal, appellants counsel referred to the guiding principal on abuse of process given by A.O. Ejiwunmi JSC (of blessed memory) in the case of Ikine and ors v. Edjierode and ors (200) & NSCOR 348, line D-F, where he said “for an action to be declared frivolous, vexations oppressive and an abuse of process of court, it must know quite clearly at that there are two or more action between the same parties in respect of the same subject matter in one or more courts at the same time”.

Appellants counsel argued that there are two actions, that ID/787/05, pending in respect of the same subject matter in two courts at the same time. The two respondents in this appeal who are 1st and 2nd claimants in suit No. ID/787/04.

They have a counter claim against the 1st appellant in that suit which was first in time. The subject matter in both suits of ownership of the said property. The reliefs claimed by both parties in the two suits are for declaration of title, damages for trespass; and injunction against repetition of trespass.

Learned counsel further contended that the learned trial judge came to the erroneous conclusion because she failed to appreciate the status of the second appellant was not name a party in suit No. ID/787/04 is immaterial in law.

Learned Counsel cited the case of Maya v. Oshuntokun (2001) 11 NWLR (pt. 723) 62 at 67 ratio 9 to emphasise the fact that parties named on the writ includes privies.

Appellants also referred to relief 5 of respondents counter claim dated 14th October 2004 in suit No. ID/787/04 wherein they claimed a perpetual injunction restraining the claimant either by himself, servant and/or privies. The effect is that if the counter claim of the respondent in suit No. ID/787/04 is successful against 1st appellant; it will be binding on 2nd appellant as a privy.

Complied By Chidi Enyie