(2016) LPELR-40136(CA)

Transcription

1 IWAYEMI & ANOR v. AKINBO CITATION: MOJEED ADEKUNLE OWOADE MOHAMMED AMBI-USI DANJUMA JAMES SHEHU ABIRIYI CHIEF IFEDAYO IWAYEMI & ANOR SNR. AP. AKINYOOYE AKINBO RATIO DECIDENDI In the Court of Appeal In the Akure Judicial Division Holden at Akure ON THURSDAY, 7TH JANUARY, 2016 Suit No: CA/AK/161/2014 Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) - Respondent(s)

2 1 PRACTICE AND PROCEDURE - APPLICATION/MOTION: Whether an unheard motion can be adjudged an abuse of Court process "Yet, it is the law that a judge has no right to come to the conclusion that a motion is an abuse of the Court process without hearing it.see: Mobil Producing Nigeria Unlimited & Anr V. Chief Simon Monokpo & Anr. (2003) 12 SCM 145."Per OWOADE, J.C.A. (P. 19, Paras. D-E) - read in context

3 2 APPEAL - INTERFERENCE WITH EXERCISE OF DISCRETION: Circumstances under which an appellate Court will interfere with exercise of discretion of lower Court "This is because all judicial discretion must be according to common sense and according to justice, and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appeal Court to have it reviewed. See J. A. Odutola V. Inspector Kayode (1994) 3 KLR 1.An Appellate Court may as in the instant case interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of discretion:-.a. Where the discretion was exercised based on wrong insufficient material orb. Where no weight or insufficient weight was given to relevant consideration orc. Where the tribunal acted under misconception of law or under misapprehension of fact and d. In all other cases where it is in the interest of justice to interfere. Akin Akinyemi (Akin Akinyemi & Associates) V. Odu'A Investment Co. Ltd. (2012) 1 SC (Pt. iv) 1."Per OWOADE, J.C.A. (Pp , Paras. C-A) - read in context

4 3 PRACTICE AND PROCEDURE - APPLICATION(S): Position of law where there are motions to terminate a suit and other to keep it alive "In determining the sole issue in this appeal, the first noticeable incongruity, perhaps irregularity is the fact that the motion to dismiss the suits filed by the Appellants were taken in the pendency of the Appellants motion to consolidate the suits. The learned trial judge thereby erred in law in taking the Respondent'smotion to dismiss without any action on the Appellants motion to consolidate the suits. The law is that where there are two motions, one seeking to terminate a case and the other seeking to keep it alive for determination on the merit and where a word bears two meanings, one in form of terminating a matter in limine and the other tending to keep it alive for determination on the merit, the later should be preferred to the former. See: Mallam Abubakar & 3 Ors. V. Saidu Usman Nasamu & 5 Ors, (2011) SC (Pt.1) 1 and Nalsa & Team Associates V. N. N. P. C, (1991) SC 83."Per OWOADE, J.C.A. (Pp , Paras. D-B) - read in context

5 4 WORDS AND PHRASES - "DEMURRER": Meaning of "demurrer" "The word "demurrer" derived from latin "demorari or the French "demorrer" meaning to wait or stay connotes a pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief and for the defendant to frame and answer.see: Black's Law Dictionary 8th Edition page 465."Per OWOADE, J.C.A. (P. 20, Paras. B-D) - read in context

6 5 PRACTICE AND PROCEDURE - DEMURRER PROCEEDINGS/APPLICATIONS: Whether demurrer has been abolished "The various High Court Rules in Nigeria today have abolished demurrer. A typical example of the legislative pattern that cuts across is the provision of Order 24 of the Ondo State High Court (Civil Procedure) Rules Rules 1-3 of the said Order 24 read thus: "1. No demurrer shall be allowed. 2. Any party shall be entitled to raise by his pleadings any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial. Provided that by consent of the parties or by Order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.3. If, in the opinion of the Court or a judge the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set - off, counter - claim or reply therein, the Court or judge may thereupon dismiss the action or make such other order therein as may be just "Per OWOADE, J.C.A. (Pp , Paras. D-C) - read in context

7 6 PRACTICE AND PROCEDURE - SPECULATION: Whether Courts are allowed to speculate "The reason for this is that law is not a game of wizardry. It is not and has never been the function of a Court of law by its own ingenuity or exercise to imagine, speculate on or to supply evidence to work out the mathematics of arriving at an answer in a case which only evidence tested under cross examination can supply.see: Okoya & 2 Ors. V. Santilli & 2 Ors. ( ) ALL NLR 404, Agip (Nigeria) Ltd. & 8 Ors. V. Chief C. Ezendu & 9 Ors. (2010) 1 SC (Pt.11) 98, Olalomi Industries Ltd. V. Nigerian Industrial Development Bank Ltd. (2009) 7 SC 94, Rapheal Eiezie & Anr. V. Christopher Anuwu & 3 Ors. (2008) 4 SCNJ 113, Yakeen Alabi Odonigi V. Aileru Oyeleke (2001) 4 SCM 127, Kraus Thomson Organization Limited V. University of Calabar (2004) 4 SCM 83 and Messrs MISR (Nig.) Ltd. V. Mallam Yesufu Ibrahim (1974) 5 SC 47.?Moreover, "a trial is not an investigation and investigation is not the function of a Court "??See: Duruminiya V. Commissioner of Police (1962) N.N.L.R. 70 at "Per OWOADE, J.C.A. (Pp , Paras. B-A) - read in context

8 7 PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS : What constitutes abuse of Court process "This is because the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. Saraki V. Kotoye (1992) SCNJ 26.Indeed, to sustain a charge of abuse of process of the Court, there must co-exist inter alia: (i) A multiplicity of suits. (ii) The suit is between the same opponents (iii) The suit is on the same subject matter (iv) The suit is on the same issue.see: Chief Victor Umeh & Anr. V. Prof Maurice Iwu (Chairman INEC) & 3 Ors. (2008) 2 SCNJ 272.?"Per OWOADE, J.C.A. (Pp , Paras. C- A) - read in context

9 MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Ondo State High Court sitting at Okitipupa, delivered by Hon. Justice I. A. Adegbenro on 7th day of March, 2011.The Appellants as plaintiffs in suit No.HOK/40/2006 took out a writ of summons and on filed a statement of claim for declaration, trespass and injunction against the defendant. Issues were joined by the Appellants Amended Statement of Claim of and the Respondent's Statement of Defence of On , the Respondent as defendant/applicant brought a motion on notice for an order of the Honourable Court dismissing or striking out the suit.the grounds on which the application was based were as follows: 1. Suit No. HOK/38/2006 Between Chief Ifedayo Iwayemi & Anr. And Mr. Ebun Obolo was instituted by the plaintiffs Respondents earlier in time than this suit. 2. Suit No.HOK/38/2006 is between the same parties or their privies as in this case. 3. Suit No.HOK/38/2006 is on the same claim, issue and subject matter (the same land) as in this case and the suit is still pending

10 and it is part heard. 4. This suit amounts to multiplicity or duplicity of action by the same parties on the same subject matter and it is an abuse of the process of this Honourable Court. 5. This Honourable Court has the jurisdiction power and duty to put an end to this suit which is an abuse of process. 6. There is a possibility of conflicting decision if the two suits continue. Meanwhile a perusal of the record of appeal shows that before the application which became the subject matter of this appeal in suit no.hok/40/2006, one Olusegun Lema Esq. of Juwon Semudara & Co. had filed a motion on notice dated on on behalf of the plaintiffs/applicants (now Appellants) in suit no. HOK/48/2006 praying for an order of consolidation of suits Nos. (i) HOK/38/2006 (ii) HOK/39/2006 (iii) HOK/40/2006 and (iv) HOK/48/2006 On the grounds inter alia that: (a) The matters are pending in the same Court, the subject matter and the issues for determination are the same. (b) The Plaintiffs/Applicants in all the suits are the same persons. The Respondent's motion of was

11 however taken and in giving a Ruling even without a formal application or formal order of consolidation the learned trial judge on delivered a Ruling in respect of suit nos. HOK/48/2006, HOK/39/2006 and HOK/40/2006 on the application as regards suit no. HOK/40/2006. The reasoning of the learned trial judge for striking out the three suits Nos.HOK/48/2006, HOK/40/2006 and HOK/39/2006 pending before his Court could be found at pages of the record of appeal as follows: "The foregoing arguments and submissions three pertinent questions arise for determination by this Court, in my humble view. These are:- (i) Are the parties, their interests and the subjectmatter the same in the three separate Suits - HOK/48/2006, HOK/40/2006 and HOK/39/ now pending before this Court? (ii) If the answer to question (i) is 'yes', what then should be the attitude of this Court to these suits? (iii) Going by the consensus argument of both counsels in this application that the original suit no. HOK/38/2006 which is already part-heard before another judge is the same as the present suits before this Court as regards parties, subject - 3

12 matters, interests and reliefs sought, are these later suits not caught by the rule against multiplicity of suits in respect of the same subject-matter? In answering these questions, I have taken the pains to go through the writ of summons and the pleadings filed in each of the cases and my discovery is that the plaintiffs in the cases are members of the Abodi family of Ode - Ikoya, while the defendants are members of Obolo family. Equally, the claim in all the three cases are the same mutatis mutandi, ditto the relief sought. What I am saying, for purposes of clarity' is that in all the three cases the parties are same' the subject - matter (i.e the land in dispute) is the same as regards size and location. The reliefs sought by the plaintiffs is the same in all the cases. I also observe that the defendants in all the cases are different in name but they are members of the Obolo family. It is elementary principle of land law that no member of a land-owning family has a separate interest in an undivided/un-partitioned family land. Therefore, the differences in name notwithstanding' it is my view that the suit against these several defendants is a suit against the

13 larger Obolo family. Therefore, my answer to the first question is that the parties and their interests and subject-matter of the three separate suits- HOK/48/2006, HOK/40/2006 and HOK/39/2006 now pending before this Court are the same in all material particulars: see Balogun V. Thomas (2001) 45 W.R.N. Page 65. On the second question as to the attitude of the Court in the light of my conclusion on question:- (i) I am of the strong view that it is wrong in law to bring two suits in the same case. Therefore, these three suits cannot stand the test of trial before this Court:- See Nig. Intercontinental Merchant Bank Ltd. Vs. Union Bank of Nig. Ltd. (2004) 12 NWLR (Pt.888) 624. The above conclusion invariably leads me to the conclusion that these three suits aforestated are caught by the rule against multiplicity of suits in respect of the same subject-matter. In the light of the above conclusion, I agree in toto with the submissions of Mr. Dare for the defendants/applicants, while I reject in its entirety all the submissions of Mr. O. T. Semudara for the Plaintiffs/Respondents. In conclusion, I hereby strike out the three suits Nos. HOK/48/2006, 5

14 HOK/40/2006 and HOH/39/2006 now pending before this Court, I award N10,000 cost against the plaintiffs/respondents jointly and severally in favour of the defendants/applicants." Dissatisfied with the decision, the Appellants filed a Notice of Appeal containing three (3) grounds of appeal in this Court on Appellants brief of argument dated was filed on Respondent's brief of argument dated and filed on was deemed filed on Appellants Reply on point of law was filed on Learned counsel for the Appellants nominated two (2) issues for determination. They are: 1. Whether a single or one writ of summons can sustain various transactions of sales or allocations of land to different persons having a separate and distinct interest or not. 2. Whether Obolo family is a party to these actions. Learned counsel for the Respondent formulated a sole issue to wit: Whether the trial Court was not right in striking out the Appellants suits" I have carefully gone through the record of proceedings and other processes filed in this appeal. I am convinced that the interest of justice would be 6

15 served with a sole issue as follows: "Whether the trial Court was right in striking out the Appellants suits." The case of the Appellants on the sole issue now formulated by this Honourable Court is that the Defendants in the three (3) cases are different. That the interest of each defendant on the land is separate and distinct. Their houses on the land are not jointly owned. And that Obolo family which the Respondent claimed could be sued is not a juristic person. Counsel submitted that no evidence was led in this matter before His Lordship Hon. Justice I. A. Adegbenro struck out this suit and the remaining - other 2 suits.he argued that there is no demurrer in our Rules of Court any longer as demurrer has long been abolished by Order 24, Rules 1-4 Ondo State Rules of the High Court The Appellants contends that the Respondents must have pleaded multiplicity as a defence in their statement of defence and thereafter bring an application to set it down for argument. Counsel added that the exception to the above rule is if the complaint or misnomer is apparent on the face of the writ of summons or situation where no evidence is required to detect the 7

16 complaint. He referred to the cases of Provisional Council, O.S.U. V. Makinde (1991) 2 NWLR (Pt.175) 613 at 620, Fadare V. A.G. Oyo State (1982) 4 SC 1. He argued that the crux of the matter is whether it is improper to have separate actions against various Defendants having separate and distinct interest on land. He submitted that the Defendant in suit No.HOK/40/2006 i.e. the subject matter of this Appeal is Snr. Ap. Akinyooye Akinbo (Refers to writ of summons on pages 1-2 of the record). That the Defendant in suit no.hok/39/2006 is Mr. Abayomi Adenaya, while Ebun Obolo is the defendant in HOK/38/2006 while Mathew Oyedele Obolo is the defendant in HOK/48/2006.This, according to counsel shows that the Defendants are different, separate and distinct individuals. Counsel opined that it is very difficult to understand why the learned judge in his Ruling at page 51 of the record claimed that the defendants are all members of the Obolo family. He submitted that before one could talk of multiplicity of actions, the parties and subject matter must be the same. However that from all the affidavit evidence before the Court, even the statement of claim and the statement of 8

17 defence in the three cases, it is nowhere contained that: (i) That the house which is the subject matter of suit no.hok/40/2006, the subject matter of this appeal is the same with that which is the subject matter in suit no.hok/39/2006 or HOK/48/2006. (ii) Akinyooye Akinbo who is the defendant in suit no.hok/40/2006 the subject matter of this appeal has his own house separately and distinct from Abayomi Adenaya the defendant in suit no. HOK/39/2006 also Abayomi Adenaya the defendant in HOK/39/2006 is different from Ebun Obolo the defendant in suit HOK/38/ the suit referred to in the motion filed by the Respondent which led to this appeal. (iii) Both affidavits and statement of claim and statement of defence in the respective actions show vividly that the property (houses and crops) are not jointly owned by the three defendants in the three (3) cases. Multiplicity of actions, he said is no doubt an abuse of Court process. It becomes an abuse of Court process in a situation where a party has instituted more than one suit against the same defendant in respect of the same subject matter on the same issue to irritation and annoyance of 9

18 the other party. In other words, said counsel, multiplicity of actions is the existence of two or more lawsuits litigating the same issue against the same defendant. But, that the case at hand is different in that the parties and interest of the Defendants on the land are separate and distinct. On this, counsel referred to the case of Saraki V. Kotoye (1992) 9 NWLR (Pt.264) 156. He submitted that the affidavit and the various statement of defence of the defendant/respondent and other two (2) different defendants do not allege, annoyance, irritation harassment etc that could satisfy the conditions stipulated by the Apex Court in Saraki v. Kotoye (supra). He argued that the complaint of trespass against the Respondent in this appeal and each of the three defendants in the 2 suits respectively is - separate and distinct which cannot be maintained in a single suit. The property of the defendant in suit No.HOK/40/2006, the subject matter of this appeal is different from that of the defendant in HOK/39/2006 and also from HOK/38/2006. Appellants counsel submitted further that the mode or method with which each trespass was committed is different, as could be seen in the 10

19 statement of defence of each of the defendants. For example, that Akinyooye Akinbo the defendant in HOK/40/2006 now Respondent in this appeal claims he got to the land by birth. (Paragraph 5, statement of defence pages 8-9 of the record). That the defendant in HOK/39/2006 (Abayomi Adenaya) said the land was allotted to him by Obolo family. (Pages of the record). The defendant in suit HOK/40/2006 also claim that he came to the land having been allotted to him by Obolo family. There was no averment that the three defendants came to the land same date. And, there was no indication that all members of Obolo family allotted the land. Appellants counsel submitted that since the interest of the respective defendants in the three cases are not the same, the learned judge erred in law to hold that the action and the other sister cases HOK/38/2006 offend the rule of multiplicity. He referred to the cases of Gbadamosi Adewoyin v. Bello Adedibu & Ors (1958) WNLR 145 at 146, Umeh & Anr. V. Maurice Iwu & Ors. (2008) 4 SCM 191 at 204, and Ogoejeofo V. Ogoejeofo (2006) 1 SCM P Counsel submitted that there is no where either in the address of 11

20 the Appellants counsel or in the statement of claim agreed or stated that the parties, interest and issues involved in HOK/38/2006 which was pending before Justice Olasehinde Kumuyi are the same as claimed by the learned judge at page 51 of the record. A pertinent question to ask, said counsel, is could the judgment in suit No.HOK/38/2006 pending before another judge (Justice Olasehinde Kumuyi) be enforced against the Respondent in this appeal or any of the 2 defendants in the cases struck out? He answered in the negative. And, added that the defendant is different, his building on the land is different from those of the other defendants in the suits struck out. On another wicket, Appellants counsel re-identified the crux of the matter in this appeal as whether evidence so far at the stage which the learned judge struck out the cases showed that Obolo family is a party to the cases which are the subject matter of this appeal. Also, whether there is proof before the learned judge that the land on which the three (3) defendants built their respective houses and planted crops was part of the land in dispute between Abodi family and Obolo family in suit AK/19/1967, 12

21 that can qualify the defendants in the suits struck out to be privies of Obolo family in suit AK/19/1967. Counsel argued that before it could be determined that the area upon which the defendants build their houses and planted crops was part of the land adjudged or declared for Obolo family in suit No. AK/19/1967, oral evidence must be called and both parties must be heard. He submitted that the plaintiffs now the Appellants in the 3 cases struck out in their statement of claim in each of the cases claimed that the area now in dispute was not part of the land declared for Obolo family in suit No.AK/19/1967. But, that the Respondent in this appeal and the defendants in the sister cases claim it was part of the land adjudged or declared for the Obolo family. He submitted that the onus is on the Respondent in this appeal to prove that where each of them has building was part of the land declared for Obolo family. He referred to the evidence of PW1 in Suit No. HOK/38/2006, a surveyor, to the effect that the area which the Respondent in this appeal was sued and the defendants in the other cases are not within the area declared for Obolo family in suit no. AK/19/

22 The document, said counsel, exhibited on pages of the record emanated from the Respondents.He submitted that it is premature for the learned judge to hold or believe that the Respondent is privy of Obolo. The learned Judge ought to have heard evidence to determine whether the area built upon by the Respondent is part of Obolo family land. Also, that, without evidence being led, it is again premature for the learned judge to hold that Obolo family is a party to the cases. The Respondent did not join Obolo family and Obolo family did not apply to join. That in paragraph 15 of the Appellants statement of claim, the Appellants as plaintiffs named 7 persons Abodi Family had allotted land to on the land (pages of the record), the Respondents did not deny it and Obolo family did not apply to join the suits or sue those named therein. He urged us to allow the appeal and set aside the Ruling of the High Court. Learned counsel for the Respondent referred to the cases of Alhaji Muhammadu Dingyadi & Anr. V. INEC & 2 Ors. (2011) 4 SC (pt.1), Tukur V. Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517 and Egbonu V. BRTC (L997) 12 NWLR (Pt.531) PP

23 - 641 and submitted that the Court has an inherent jurisdiction to undo what has been done by a party in abuse of Court process, particularly in an attempt at forum shopping, so to avoid a situation whereby the Court will be presented with a fait accompli. He submitted that it is not the duty of an Appellate Court to substitute his own discretion for that of the trial Court.He referred to the case of Akin Adejumo & Ors. V. Ajani Yusuf Avantegbe (1989) 6 SC (Pt.1) 76. He submitted that what was in issue in the Court below between the parties ' was whether the parties, their interests and the subject matter were the same in the three separate suits, that is HOK/40/2006, HOW/48/2006 and HOK/39/2006 as they were then constituted. That the Court below found that going through the writ of summons and the pleadings filed in each of the cases, the plaintiffs in all the cases are members of the Abodi family of Ode - Ikoya, while the defendants are members of the Obolo family and that the claims and the reliefs in the three cases are the same. Respondent's counsel submitted that a critical examination of endorsements on the writ of summons and the statements of claim 15

24 in suit Nos. â HOK/40/2006, HOK/48/2006 and HOK/39/2006 will show vividly that the Appellants had made the same claim against the Respondents in the said several suits. He submitted further that from legs 1 and 3 of the Appellants claims on pages 2-5 of the record that Appellants claims are against Respondents privies and persons claiming through them and the subject matter of the suit is one and the same in other suits. Counsel submitted that suit HOK/40/2006 is applicable in this appeal while suit No, HOK/48/2006 and HOK/39/2006 are involved in Appeal Nos.CA/AK/161/2014 and CA/AK/13/2014 respectively. And, that all these suits as presently constituted before this Court are one and the same. Learned counsel for the Respondent submitted that as constituted at the Court below the suits amounted to abuse of Court process and forum shopping because the Appellants are aware that defendants in other suits are either member of the Obolo family or claiming through the Respondent's family. In reaction to the Appellants argument that the Respondent ought to have pleaded multiplicity of action, Respondent's counsel submitted that the Court has an inherent 16

25 jurisdiction to protect itself from abuse or to see that its process was not abused by the proceeding without reasonable grounds so as to be vexatious and harassing. However, that, where the Court did not advert its mind to the fundamental nature or otherwise of a given case before it, the defendant who conceives that ex-facie, he has a good ground of law which if raised will determine the action in limine is entitled to raise such good ground of law and without filing a defence would apply to strike out the action as the case may be. On this, counsel referred to the cases of Josiah Cornelius Ltd & Ors. V. Chief Cornelius Okeke Ezenwa (1996) 4 SCNJ 124, Dangida V. Mobil Producing (Nigeria) Ltd. (2002) FWLR (Pt.97) 659 at 675. And Nicon Insurance (Nig.) Ltd. V. Noga Hotels (Nig.) Ltd. (2003) FWLR (Pt.184) 231 at 245. He further referred to the case of Charles C. Odedo V. INEC & Ors. (2008) 7 S. C. 25 and submitted that the Court can suo motu dismiss an action where it finds its processes abused by a party.respondent's counsel emphasized that the crucial findings of the Lower Court were that the claimant and Appellant herein abused the processes of the

26 Court having found that the parties, subject matter and issues were the same. He argued that the Appellant has not challenged the findings of the Lower Court nor did he show that the Court's discretion was not judicially or judiciously applied. He submitted that it is the law that even where an appellant is able to show that the Court below had committed an error, without showing that such error is substantial or material in that it has affected the merits of the case one way or the other or has occasioned a miscarriage of justice, the appeal will still be dismissed. He referred to the case of Lasisi A. Akyepe & Anr. V. Ganiyu A. Akavepe (2009) SC 5-6 (Pt.1) pages 21 and urged us to dismiss the appeal. In determining the sole issue in this appeal, the first noticeable incongruity, perhaps irregularity is the fact that the motion to dismiss the suits filed by the Appellants were taken in the pendency of the Appellants motion to consolidate the suits. The learned trial judge thereby erred in law in taking the Respondent's- motion to dismiss without any action on the Appellants motion to consolidate the suits. The law is that where there are two motions, one 18

27 seeking to terminate a case and the other seeking to keep it alive for determination on the merit and where a word bears two meanings, one in form of terminating a matter in limine and the other tending to keep it alive for determination on the merit, the later should be preferred to the former. See: Mallam Abubakar & 3 Ors. V. Saidu Usman Nasamu & 5 Ors, (2011) SC (Pt.1) 1 and Nalsa & Team Associates V. N. N. P. C, (1991) SC 83. Relatedly, the learned trial judge did not formally consolidate the suits or the motions before declaring all the Appellants suits as abuse of process for multiplicity of actions. Yet, it is the law that a judge has no right to come to the conclusion that a motion is an abuse of the Court process without hearing it. See: Mobil Producing Nigeria Unlimited & Anr V. Chief Simon Monokpo & Anr. (2003) 12 SCM 145.The striking out of suits Nos. HOK/48/2006 and HOK/39/2006 alongside with HOK/40/2006 by the learned trial judge without any order of consolidation of the suits or the consolidation of other motions with the motion in respect of suit No. HOK/40/2006 by the learned trial judge is wrong. This

28 same conclusion would be reached in a consideration of the argument of the learned counsel for the Appellants that the Respondents ought to have pleaded multiplicity as a defence in their statement of defence and thereafter bring an application to set it down for hearing. This, according to Appellants counsel is because there is no Demurrer in the Rules of Court any longer as it has long been abolished. The word "demurrer" derived from latin "demorari or the French "demorrer" meaning to wait or stay connotes a pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief and for the defendant to frame and answer.see: Black's Law Dictionary 8th Edition page 465. The various High Court Rules in Nigeria today have abolished demurrer. A typical example of the legislative pattern that cuts across is the provision of Order 24 of the Ondo State High Court (Civil Procedure) Rules Rules 1-3 of the said Order 24 read thus: "1. No demurrer shall be allowed. 2. Any party shall be entitled to raise by his pleadings any point of law, and any points so raised shall 20

29 be disposed of by the Judge who tries the cause at or after the trial. Provided that by consent of the parties or by Order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial. 3. If, in the opinion of the Court or a judge the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set - off, counter - claim or reply therein, the Court or judge may thereupon dismiss the action or make such other order therein as may be just In the instant case, the Respondent ought indeed to have complied with the provision of Order 24 of the Ondo State High Court Rules in not only raising the point of multiplicity of suits if any in his pleadings but also thereafter to set it down for hearing. It was this same error which led the learned trial judge to hold without any materials placed before him that the parties, their interests and the subject matter are the same in the three suits which he struck out. On the

30 face of it, the defendants in the three separate suits that were struck out are not the same and the learned trial judge could not without hearing evidence infer, and or conclude that the defendant in each of the three separate cases is the Obolo family. The reason for this is that law is not a game of wizardry. It is not and has never been the function of a Court of law by its own ingenuity or exercise to imagine, speculate on or to supply evidence to work out the mathematics of arriving at an answer in a case which only evidence tested under cross examination can supply.see: Okoya & 2 Ors. V. Santilli & 2 Ors. ( ) ALL NLR 404, Agip (Nigeria) Ltd. & 8 Ors. V. Chief C. Ezendu & 9 Ors. (2010) 1 SC (Pt.11) 98, Olalomi Industries Ltd. V. Nigerian Industrial Development Bank Ltd. (2009) 7 SC 94, Rapheal Eiezie & Anr. V. Christopher Anuwu & 3 Ors. (2008) 4 SCNJ 113, Yakeen Alabi Odonigi V. Aileru Oyeleke (2001) 4 SCM 127, Kraus Thomson Organization Limited V. University of Calabar (2004) 4 SCM 83 and Messrs MISR (Nig.) Ltd. V. Mallam Yesufu Ibrahim (1974) 5 SC 47. Moreover, "a trial is not an investigation and investigation is not

31 the function of a Court See: Duruminiya V. Commissioner of Police (1962) N.N.L.R. 70 at For these reasons, the learned counsel for the Respondent could not be heard to say that the Court of Appeal is not entitled to intervene in the wrongful exercise of the trial's Court discretion which was not exercised in accordance with the law. This is because all judicial discretion must be according to common sense and according to justice, and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appeal Court to have it reviewed. See J. A. Odutola V. Inspector Kayode (1994) 3 KLR 1. An Appellate Court may as in the instant case interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of discretion:-. a. Where the discretion was exercised based on wrong insufficient material or b. Where no weight or insufficient weight was given to relevant consideration or c. Where the tribunal acted under misconception of law or under misapprehension of fact and d. In all other cases where it is in the interest of justice to interfere. Akin Akinyemi (Akin 23

32 Akinyemi & Associates) V. Odu'A Investment Co. Ltd. (2012) 1 SC (Pt. iv) 1. In the instant case, the exercise of discretion by the learned trial judge to strike out the three separate suits against different defendants by the Appellants was not in accordance with justice and/or guiding principles of law. This is even more so as the action of the Appellants in filing different suits against different defendants could not indeed be said to amount to multiplicity of actions and abuse of Court process.this is because the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. Saraki V. Kotoye (1992) 11 â 12 SCNJ 26.Indeed, to sustain a charge of abuse of process of the Court, there must co-exist inter alia: (i) A multiplicity of suits. (ii) The suit is between the same opponents (iii) The suit is on the same subject matter (iv) The suit is on the same issue. See: Chief Victor Umeh & Anr. V. Prof Maurice Iwu (Chairman INEC) & 3 Ors. (2008) 2

33 SCNJ 272. In the instant case, the above four factors do not co - exist before the learned trial judge struck out the three suits filed by the Appellants. Clearly, the learned trial judge was in error and wrongly exercised his discretion to have struck out the three different suits either on account that the parties, interests and the subject matter are the same and/or account that they constitute multiplicity of actions and abuse of Court process. This error has ' occasioned a miscarriage of justice on the Appellants. In the circumstance, the sole issue in this appeal is resolved in favour of the Appellants. The appeal is meritorious and it is allowed. Consequently, the Ruling of 7th of May, 2011 by I. A. Adegbenro J. in the High Court of Justice, in the Okitipupa Judicial Division wherein suits Nos.HOK/48/2006, HOK/40/2006 and HOK/39/2006 pending in that Court are struck out is set aside. N30,000 costs is awarded in favour of the Appellants. MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree. JAMES SHEHU ABIRIYI, J.C.A.: I agree.