2. That the suit as presently constituted is an abuse of the process of this court.

Transcription

1 << IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA THURSDAY, MAY 16, 2013 BEFORE HIS LORDSHIP: THE HON. JUSTICE PETER O. AFFEN SUIT NO: FCT/HC/CV/1192/2012 BETWEEN: KINGSLEY EZEJI UCHE PLAINTIFF AND 1. FAREAST MERCANTILE CO. LIMITED 2. AHMED HUSSEIN DEFENDANTS 3. ECONOMIC AND FINANCIAL CRIMES COMMISSION RULING THE 1 ST AND 2 ND DEFENDANTS herein have challenged the jurisdiction of this court to entertain this action as presently constituted and urged the court to strike out the suit. The court is therefore obligated as a matter of law to grapple with this jurisdictional challenge before going further in the proceedings, if at all we will go any further. The grounds upon which the preliminary objection dated 11/2/13 but filed on 12/2/13 is predicated are: 1. That pursuant to s. 254 (c) of the Amended Constitution of the Federal Republic of Nigeria, 2011 (sic) the subject matter of the case is not within the jurisdiction of this court, therefore the court cannot assume jurisdiction to hear and determine the suit. 2. That the suit as presently constituted is an abuse of the process of this court. 1 Page

2 The objection is supported by a 4-paragraphed affidavit deposed by one Chinenye Olua, a litigation secretary in the Law Firm of Messrs. Compass Solicitors who are acting as counsel for the 1 st and 2 nd Defendants/Applicants, with Exhibit A annexed thereto. The Plaintiff/Respondent did not file any counter affidavit but opted to oppose the preliminary objection strictly on points of law. I think he is perfectly entitled so to do. In law, a party opposing an application need not file a counter affidavit where he does not intend to join issues with the applicant on the depositions contained in the affidavit in support. He may oppose the application strictly on points of law. See SODIPO v. LEMINKAINEM OY [1992] 8 NWLR (PT. 258) 229. At the hearing on 23/04/2013, learned counsel for the parties adopted their respective written addresses. Whereas learned counsel for the 3 rd Defendant, C. O. Ugwu, Esq. aligned himself with the submissions of Ugo Agugam, Esq. of counsel for the 1 st and 2 nd Defendants/Applicants urging the court to sustain the preliminary objection and strike out the suit for want of jurisdiction, Emeka Uchegbulam, Esq. of counsel for the Plaintiff/Respondent conceded that reliefs (f) and (c) fall outside the purview of the jurisdiction of this court by virtue of the 3 rd Amendment to the Constitution but urged the court to assume jurisdiction over the residue of the reliefs claimed. I will refer to counsel s submissions as I consider relevant in determining this preliminary objection. Now, it is merely restating the obvious that jurisdiction is the first test in the legal authority of a court or tribunal and its absence disqualifies 2 Page

3 the court or tribunal from determining the substantive issues submitted to it for adjudication. This is so because jurisdiction is the very lifeline of judicial power and judicialism without which the entire proceedings constitutes a nullity however brilliantly they may otherwise have been conducted. Indeed, jurisdiction is everything: without it a court has no power to take one step in the proceedings beyond merely declaring that it lacks jurisdiction; there would be no basis for the continuation of proceedings pending and the court downs its tools in respect of the matter before it the moment it holds the opinion that it is bereft of jurisdiction. Jurisdiction is a radical and crucial question of competence and any defect in the competence of the court is fatal and snuffs out the life of adjudication from the court; such defect is extrinsic to the adjudication on the merit and the proceedings however well conducted and decided they otherwise may be are a nullity. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587 at 595; ROSSEK v. ACB LIMITED [1993] 8 NWLR (PT. 312) 382 at 437 C-G; 487 G B; MATARI v. DANGALADIMA [1993] 3 NWLR (PT. 281) 266; OLOBA v. AKEREJA [1988] 3 NWLR (PT. 84) 508; and OKE v. OKE [2006] 17 NWLR (PT. 108) 224 amongst a host of other cases. Let us first dispose of two preliminary points raised in the written address filed on behalf of the Plaintiff/Respondent, which could be described as an objection to the 1 st and 2 nd Defendant s preliminary objection. It is contended on behalf of the Plaintiff/Respondent that in the light of Order 22 Rule 2 (1) & (2) of the High Court of the FCT Abuja (Civil Procedure) Rules 2004 (hereinafter CPR ) relating to proceedings in lieu of demurrer, the 1 st 3 Page

4 and 2 nd Defendants are not at liberty to raise the present preliminary objection without first filing a statement of defence. It is further contended on behalf of the Plaintiff/Respondent that the 1 st and 2 nd Defendants/Applicants have not entered appearance (whether conditionally or unconditionally) which is a fundamental step that must to be taken before they can defend this case. The Plaintiff has therefore urged the Court to strike out the preliminary objection for being incompetent and a gross violation of the rules of this court. The reaction of learned counsel for the 1 st and 2 nd Defendants is that a preliminary objection is not a demurrer and can be raised without filing of defence, relying on the cases of PEOPLES DEMOCRATIC PARTY v. ADEYEMI [2002] 10 NWLR (PT. 776) 524 at 545 and NDIC v. CBN [2002] 7 NWLR (PT. 766) 272 at 296. Without much ado, I think the learned counsel for the 1 st and 2 nd Defendants/Applicants is right. This is because there is a marked difference between a preliminary objection bordering on jurisdiction and demurrer. The law, as I have always understood it, is that an application which touches on jurisdiction can be raised at any stage of the proceedings even without the completion of pleadings. See GLOVER v. OFFICER ADMINISTERING GOVT. OF NIGERIA (1956) NLR 45; FASHANU v. GOVERNOR, WESTERN NIGERIA (1956) W.N.L.R. 135; R.T.C. v. FOB INVESTMENT & PROPERTIES LTD [2001] 6 NWLR (PT. 708) 246 at Such an objection touching on jurisdiction is certainly not a demurrer [see JIMOH v. STARCO NIGERIA LIMITED [1998] 7 NWLR (PT. 558) 523 at 533], even as it has been held that the tendency to 4 Page

5 equate demurrer proceedings with an objection to jurisdiction is manifestly misleading. See NIGERIA DEPOSIT INSURANCE CORPORATION v. CENTRAL BANK OF NIGERIA [2002] 7 NWLR (PT. 766) 272; PEOPLES DEMOCRATIC PARTY v. ADEYEMI [2002] 6 WRN 169 at 185. It bears emphasizing that jurisdiction is a fundamental and radical question of competence: a prerequisite and compelling necessity for the consideration of demurrer proceedings. That is to say, demurrer proceedings would not lie where the court is bereft of jurisdiction. See OKONKWO v. INEC supra at It seems to me therefore that quite contrary to the arguments pressed on behalf of the Plaintiff, the 1 st and 2 nd Defendants are perfectly entitled to raise the present preliminary objection without first filing a statement of defence, and they cannot be said to have acted contrary to Order 22 Rule 2 (1) & (2) CPR. Now, the grounds upon which the present preliminary objection is predicated are set out hereinbefore. The first prong of the objection is that the subject matter of the suit is not within the jurisdiction of this court, whilst the gravamen of the second prong of the objection is that the suit as presently constituted is an abuse of the process of this court. The following reliefs are endorsed in the writ of summons issued out of the Registry of this Court on 11/12/2012 as well as the accompanying statement of claim: (a) A DECLARATION that the constant harassment of the Plaintiff and his wife, likewise threats to his wife s job, by the Defendants is unlawful. 5 Page

6 (b) (c) (d) (e) (f) AN ORDER restraining the Defendants, their agents, servants, privies or otherwise howsoever called from further arresting and harassing the Plaintiff and his wife. A DECLARATION that the Plaintiff by virtue of his employment letter from the 1 st Defendant and without a termination letter from same is deemed to continue under the employment of the 1 st Defendant and entitled to payment of salary till date AN ORDER mandating the 3 rd Defendant to properly and thoroughly investigate the alleged forgery of the Plaintiff s cheque. THE SUM of N20,000, (Twenty Million Naira) as general damages against the Defendants and in favour of the Plaintiff for the irreparable harm, frustration and hardship occasioned by the actions of the Defendants. AN ORDER mandating the Defendants to pay the Plaintiff the following sum in the event of the Defendants official termination of the Plaintiff s appointment: i. The Plaintiff s arrears of salary calculating from September 2011 till the filling (sic) of this suit which is a total sum of Five Hundred and Twelve Thousand Six Hundred and Twenty Five Naira (N512,625.00). ii. The Plaintiff s transport allowance amounting to the total sum of Three Hundred and Ninety Thousand Naira (N390,000.00). 6 Page

7 iii. Twenty months (20 month) pension deduction from the Plaintiff s salary without trace on record amounting to the sum of Fifty One Thousand, Two Hundred and Sixty Two Naira (N51,262.5). iv. The Plaintiff s twenty months (20 month) leave travel allowance i.e. 12.5% of his annual basic salary amounting to the sum of Eighty Five Thousand, Four Hundred and Thirty Seven Naira (N85,437.5) v. The Plaintiff s performance based allowance of 150% of his monthly salary for the period between September 2011 till the filling (sic) of this suit amounting to the sum of Seven Hundred and Seventeen Thousand Six Hundred and Seven (sic) Five Naira (N717,675). vi. The sum of Thirty Four Thousand One Hundred and Seventy Four Naira (N34,175.00) which is his monthly salary till judgment is given in this suit. In respect of the first prong of objection, Emeka Uchegbulam, Esq. of counsel for the Plaintiff graciously conceded at the hearing that the 5 th Amendment (sic) to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has put reliefs (c) and (f)(i)-(vi) above beyond the purview of the jurisdiction of this court. This concession by Plaintiff counsel effectively takes care of the first prong of the objection which is predicted on s. 254 (C) (1) of the 1999 Constitution (as amended). The import of the Constitution (Third Alteration) Act, 2010 is that the National Industrial Court shall have exclusive 7 Page

8 jurisdiction in civil causes and matters: (a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from the workplace, the conditions of service, including health, safety, welfare of labour, employee, workers, and matters incidental thereto; and (b) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlements of any employee, worker, political or public office holder, judicial officers or any civil or public servants in any part of the Federation and matters incidental thereto. In respect of the second prong of the objection, the contention of 1 st and 2 nd Defendants is that this suit constitutes an abuse of court process as the Plaintiff had earlier taken out Suit No. M/15173/12 before my learned brother, Aladetoyinbo, J. sitting at Court No. 6 Maitama, Abuja against the Defendants herein on the same facts, subject matter and issues with a view to restraining the investigation and prosecution of criminal minded persons. The cases of OKORODUDU v. OKOROMADU (1977) 3 SC 21 at 32; ADESOKAN v. ADEGOROH [1991] 3 NWLR (PT. 293) 297; OKAFOR v. ATTORNEY GENERAL, ANAMBRA [1991] 6 NWLR (PT. 200) 639 at 681; KOTOYE v. SARAKI [1992] 9 NWLR (PT. 264) 156 and MINISTER OF WORKS & HOUSING v. TOMAS [2002] 2 NWLR (PT. 752) 740 at 785 are cited. Learned counsel did not proffer any arguments in the written address filed on behalf of the Plaintiff in response to the 2 nd prong of the 1 st and 2 nd Defendants preliminary objection relating to abuse of 8 Page

9 court process but merely contended that the entirety of the preliminary objection is misconceived and intended to irritate and harass the Plaintiff. Now, it seems to me paradoxical that courts of law are simultaneously vested with the power and saddled with the duty under its inherent jurisdiction to ensure that the machinery of justice is duly lubricated and not abused. But as with most legal concepts, abuse of court process is a term which is not capable of precise definition, and may be more easily recognised than defined. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. It means the abuse of legal procedure or the improper use or misuse of the legal process [to vex or oppress the adverse party]. See AMAEFULE v THE STATE [1988] 2 NWLR (PT. 75) 156 at 177 (per Oputa, JSC); ARUBO v AIYELERU [1993] 3 NWLR (PT. 280) 126 at 142. The categories of abuse of court process are not closed and there is an infinite miscellany of circumstances that could give rise to abuse of process. See NV SCHEEP v MV S. ARAZ [2000] 15 NWLR (PT. 691) 622. In SARAKI v. KOTOYE [1992] 9 NWLR (PT. 264) 156 at 188 E - G, the Supreme Court (per Karibi-Whyte, JSC) opined that: The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. 9 Page

10 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. See OKORODUDU v. OKOROMADU (1977) 3 SC 21; OYAGBOLA v. ESSO WEST AFRICAN INC. (1966) 1 All NLR 170. Thus the 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 in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se. (Underlining supplied) See also the cases of OKAFOR v ATTORNEY-GENERAL, ANAMBRA [1991] 6 NWLR (PT. 200) 659 at 681; CENTRAL BANK OF NIGERIA v AHMED [2001] 28 WRN 38 at 60-61; MOGAJI v NEPA [2003] 8 WRN 42 at 53 and UMEH v IWU [2008] 8 NWLR (PT. 1089) 225 at 243 (per Chukwuma-Eneh, JSC). Where an abuse of process exists, the court has little or no discretion in the matter. Abuse may also be manifested by the re-litigation of already decided issues, and the course open to the court is to dismiss the subsequent suit. See ARUBO v. AIYELERU supra at 146 E - F; GEORGE ONYEABUCHI v. INEC & 4 ORS supra. As stated hereinbefore, the Applicants grouse is that this suit constitutes an abuse of court process because the Plaintiffs had earlier taken out a similar action in Suit No. M/15173/12 between the same parties and on subject matter before my learned brother, Aladetoyinbo, J. sitting at Court No. 6, Maitama, Abuja. In 10 Page

11 determining whether there is abuse of court process, the court looks at the originating processes in the two actions to ascertain whether the two actions are between the same parties and in respect of the same subject matter. Thankfully, the court processes in Suit No. M/15173/12 (being an application for enforcement of fundamental right) are annexed to the preliminary objection as Exhibit A. In this connexion, I have carefully examined the claims in the two suits. It is quite clear that the parties in the two suits are the same. The only party in the earlier suit who is not present in the instant suit is one Shola, described as the investigating police officer (IPO) in charge of the matter between the Applicant and Fareast Mercantile Co. Limited (i.e. 1 st Defendant herein). Also, when juxtaposed with each other, it is not difficult to see that for all practical intents and purposes, the reliefs claimed in the two suits markedly similar. Even as the reliefs sought in the instant suit are set out hereinbefore, the claims in Suit No. M/15173/12 are: (a) (b) (c) A DECLARATION that the Economic and Financial crimes Commission is not an agency for recovery of company debt. A DECLARATION that the matter between the Applicant and the 3 rd Respondent is purely civil without coloration of crime. A DECLARATION that the constant harassment of the Applicant by the 1 st and 2 nd Respondent at the instance of 3 rd and 4 th Respondents is illegal, oppressive and unlawful as it violates the Applicant s fundamental rights 11 Page

12 as enshrined under Sections 34 and 35 of the 1999 Constitution of the Federal Republic of Nigeria. (b) (d) (e) (f) (sic) AN ORDER OF PERPETUAL INJUNCTION retraining the 1 st and 2 nd Respondents, whether by themselves, their agents, officers, servants or privies or howsoever called from arresting, detaining, intimidating and harassing the Applicant on any fact connected with or related to the facts in issue. A DECLARATION that the twice (sic) detention of the Applicant by the 1 st and 2 nd Respondents and further threat to arrest and detain him without charging him to Court is illegal and contrary to the provisions of 34, 36, 38 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The sum of Twenty Million Naira (N20,000,000) as damages against the 1 st and 2 nd Respondents and in favour of the Applicant for the constant harassment and intimidation to both the Applicant and his wife. SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of the case. It seems to me that reliefs (c), (b)(sic), (d) and (e) in Suit No. M/15173/12 are essentially the same as reliefs (a), (b), (d), and (e) in the instant suit, whilst reliefs (c) and (f) are labour related claims within the exclusive jurisdiction of the National Industrial Court. This being so, I cannot but find and hold that the elements that would 12 Page

13 constitute abuse of court process are present in this suit. It has been held that filling two suits between the same parties, on the same subject matter and where the end result of both suits was the same, even though the reliefs in the two suits were worded differently, would constitute abuse of court process. See MINISTER FOR WORKS & HOUSING v. TOMAS (NIG.) LIMITED supra; ALI v. ALBISHIR [2008] 3 NWLR (PT. 1073) 94 at 143 A - C (per Kekere-Ekun, JCA). It has also been held that if two actions are commenced (as in this case) with the second action seeking for relief which may have been obtained in the first, then the second action is prima facie vexatious and an abuse of the process of court. See WILLIAMS v. HUNT (1905) 1 K.B The inescapable conclusion to which I must come in the light of all that has been said in the foregoing is that this suit constitutes an abuse of court process as far as reliefs (a), (b), (d), and (e) are concerned, even as this court is bereft of jurisdiction as far as reliefs (c) and (f) are concerned. As stated hereinbefore, the courts are simultaneously vested with the power and saddled with the duty under its inherent jurisdiction to ensure that the machinery of justice is duly lubricated and not abused. I hereby exercise that power, even as I discharge that duty. It has been held that where a court comes to the conclusion that its process has been or is being abused, the proper order to make is that of dismissal of the erring process. See ARUBO v AIYELERU supra; 13 Page

14 KODE v YUSUF [2001] 4 NWLR (PT. 703) 392; AFRICAN REINSSURANCE CORPORATION v JDP CONSTRUCTION NIGERIA LIMITED [2003] 5 MJSC 104 at 122. Conversely, it has also been held that where a court finds that it lacks jurisdiction to entertain a matter, the proper order to make is not to dismiss the suit but merely to strike it out. See ADETUNJI v. ADESOKAN [1994] 4 NWLR (PT. 346) 540; NEPA v. EDEGBERO [2002] 18 NWLR (PT. 798) 79; LAKANMI v. ADENE (2003) 4 SCNJ 348 at 355; OKOYE v. NIGERIAN CONSTRUCTION AND FURNITURE CO. LTD [1991] 6 NWLR (PT. 199) 501 at 534; GOMBE v. P. W. (NIGERIA) LTD [1995] 6 NWLR (PT. 402) 402 and OKOLO v. UNION BANK [2004] 13 WRN 62 at Accordingly, this suit will be and is hereby struck out as it relates to reliefs (c) and (f) which are not within the jurisdiction of this court, but dismissed as it relates to reliefs (a), (b), (d), and (e) for being an abuse of court process. There shall be no order as to costs. PETER O. AFFEN Presiding Judge COUNSEL: Emeka Uchegbulam, Esq. for the Plaintiff Ugo Agugam, Esq. for the 1 st and 2 nd Defendants C. O. Ugwu, Esq. (with him: Benjamin Manji, Esq.) for 3 rd Defendant 14 Page