IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA HOLDEN AT ABUIA ON TUESDAY, 8TH DAY OF MARCH, 2011 BEFORE HON. JUSTICE SYLV ANUS C. ORIll SUIT NO. FCT/HC/CV/217/2008 MOTION MOTION NO. M/4750/2009 NO. M/537/2009 BETWEEN: DIYA, FATIMILEHIN & CO. PLAINTIFF AND OTUNBA DE]I OSIBOGBUN DEFENDANT RULING Upon being served with the originating processes in this suit, the defendant filed a motion on notice on 17/6/2009 for leave to file his memorandum of appearance and statement of defence out of time. The Court granted the application on 17/6/2009. The memorandum of appearance attached to the motion on notice was deemed to be properly filed and served. The defendant was to file and serve his statement of defence within 7 days from the date of the Order. However, the defendant has not filed his statement of defence. 1
By a motion on notice No. M/4750/2009 dated 20/7/2009but filed on 21/7/2009, the defendant prayed for an order of the Court dismissing and/or striking out the suit for want of jurisdiction. The grounds of the application are: 1. The suit is a gross abuse of the process of this Honourable Court. 2. The plaintiff has no reasonable cause of action and also has no right of action. 3. The suit as presently constituted is not cognizable in law. 4. Reliefs sought by the plaintiff are not grantable in the circumstances of this suit. 5. The plaintiff lacks the requisite legal capacity to institute and or maintain this suit. 6. The institution of this suit and its maintenance are contrary to public policy. In support of the application is an affidavit of 13 paragraphs, and Exhibit A attached thereto. The defence counsel, Kolawole Olowookere Esq., filed a written address in support of the application on 29/9/2009. In reaction, the plaintiff filed a counter affidavit of 7 paragraphs on 18/11/2009 and Exhibit F1 attached thereto. The plaintiff's counsel, Miss Yewande Kujore, filed a written address along with the counter affidavit. On the same date, the plaintiff filed a notice of preliminary objection to the competence of the 2
defendant's application on the ground that it amounts to a demurrer. Miss Kujore filed a written address in support of the objection. In opposition, Mr. Olowookere filed a written address on 11/12/2009. At the hearing of both applications, Jerry Akhazemea Esq. adopted the processes filed on behalf of the plaintiff, while N. O. Henry Esq. adopted the processes filed on behalf of the defendant. From the submissions of both counsel on the two applications, the issues for determination are: 1. Whether the defendant's motion on notice dated 20/7/2009 but filed on 21/7/2009 is a demurrer. 2. If the answer to issue 1 is not in the affirmative, then: (a) Whether this suit is an abuse of the process of the court; and (b) Whether the plaintiff has the requisite legal capacity to institute this suit. On the first issue, the plaintiff's counsel referred to Order 22 of the Rules of this Court, which provides that demurrer has been abolished. He argued that any defendant wishing to challenge the competence of a suit by a preliminary objection on a point of law is required to file his statement of defence and 3
raise the point of law therein. He referred to Akinade VoNoAoSoUo(1999) 2 NWLR (pt. 592) 570, among others, for support. Miss Kujore concluded that the application of the defendant is a demurrer and the Court has no jurisdiction to entertain it. On the other hand, the standpoint of the defence counsel is that by abolishing demurrer, the Rules of Court did not abolish preliminary objections on points of law especially where the objection is anchored on jurisdiction. He argued that the defendant need not file a statement of defence before he can challenge the jurisdiction of the Court to entertain the action. The case of NoDoI.CoVoCoBoNo& Anoro (2002) 7 NWLR (pt. 766) 272 was relied upon. Mr. Olowookere concluded that the application is not a demurrer as it challenges the jurisdiction of the Court to hear the suit. Now, the essence of the procedure by way of demurrer is that the party raising it contends that even if all the allegations in the pleadings of the adverse party were true, it still does not in law disclose a cause of action for the party to answer or a defence to the party's claim. See Bamisile VoOsasuyi (2007) 9 NWLR (pt. 1042) 225. It is correct that by virtue of Order 22 rules 1 & 2 of the Rules of this Court, no demurrer shall be allowed. A party may raise any point of law by his pleadings, which point shall be disposed of by the trial Judge at or after the trial. On the application of a party, a Judge may set the point of law down for hearing and same disposed of at any time before trial where the parties consent or the Court so orders. 4
The defendant's motion on notice under attack is challenging the jurisdiction of the Court to entertain this suit on the ground, inter alia, that the plaintiff lacks the legal capacity to institute the action. Let me pause to emphasize that for an action to be properly constituted so as to vest jurisdiction in the court to adjudicate on it, there must be a competent plaintiff and a competent defendant. See Ataguba & Company v. Gura Nig. Ltd. (2005) 8 NWLR (pt. 927) 429. See also the case of Georgewill v. Ekine (1998) 8 NWLR (Rt. 562) 454, where it was held that a court will decline jurisdiction to hear a suit that is not properly constituted because the proper parties are not before it. Clearly, an objection to the legal capacity of a party to institute an action is a challenge of the court's jurisdiction to entertain the suit. The question then is whether a defendant can raise a preliminary objection to challenge the jurisdiction of the court, as in the present case, without first filing a statement of defence. In Akinade v. N.A.S.U. (supra), cited by the plaintiff's counsel, the Court of Appeal held that by virtue of Order 22 of the High Court of Oyo State (Civil Procedure) Rules, which is similar to Order 22 of the Rules of this Court, demurrer has been abolished in Oyo State. Thus, a defendant wishing to challenge the competence of a suit by a preliminary objection on a point of law is entitled to file his statement of defence and raise the point of law therein. It was further held that since the defendants did not file a statement of defence in the High Court, they cannot raise a preliminary objection on a point of law. 5
The above decision was delivered on 15/12/98. However, recent decisions of the Court of Appeal are to the effect that where the point of law raised by the defendant is an objection to the jurisdiction of the court to entertain the suit, that point could be raised even if the defendant has not filed a defence. For example, in Usman v. Baba (2005) 5 NWLR (pt. 917) 113 @ 133, paras. D-H, delivered on 9/8/2004, his Lordship, Abubakar Abdulkadir lega, lca held: HOrder 23 rules 1 & 2 of the Kaduna State High Court (Civil Procedure) Rules, 1987 abolished demurrer, but it does not extend to nor cover the issue of jurisdiction. An application or preliminary objection, as in this case, seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken before the defendant files his statement of defence or without the defendant filing a statement of defence. This is because the issue of jurisdiction can be raised at any time. It is crystal clear that jurisdiction and demurrer are different... Therefore where jurisdiction is the root of the matter and the pleading can be dismissed for lack of jurisdiction simpliciter, no useful purpose will be served by filing a defence not withstanding the rules of court." Also in Bamisile v. Osasuyi (supra) delivered on 7/2/2007, the Court of Appeal held that an issue of jurisdiction can be raised before pleadings are filed provided that adequate fa~ts and materials for its determination are 6
before the Court. See also the judgment in Oluwaniyi v. Adewumi (2008) 13 NWLR (pt. 1104) 387 delivered on 20/3/2007, which adopted the decision in Usman v. Baba (supra). There seems to be an inconsistency in the decisions of the Court of Appeal on the point under consideration. The law is that where there are inconsistent decisions of a court with respect to the same issue, the later in time is to be preferred. This is the rule of posterior construction. See the cases of Seriki v. Solaru (1965) NMLR 1 and Cardoso v. Daniel (1986) 2 NWLR (pt. 20) 1. Therefore, this Court will follow the recent decisions of the Court of Appeal. Let me add that in N.D.I.C. v. C.B.N. & Anor. (supra), the Supreme Court held that there is a distinction between objection to jurisdiction and demurrer and that the issue of jurisdiction is not a matter for demurrer proceedings. Finally, it must be borne in mind that the issue of jurisdiction, being a threshold and fundamental issue, can be raised at any stage of the proceeding in the court of first instance or on appeal. See The Minister of Works & Housing v. Alhaja Kuburat ShiUu & Ors. (2007) 16 NWLR (pt. 1060) 351. The raising of an issue of jurisdiction can neither be too early nor too late. See First Fuels Ltd. v. N.N.P.C. (2007) 2 NWLR (pt. 1018) 276. In the light of all I have said, I hold that the defendant's motion on notice is not a demurrer. The preliminary objection of the plaintiff is dismissed. 7
I now turn to the first issue raised in the defendant's motion on notice, namely whether this suit is an abuse of the process of the court. The defence counsel stated that this suit is an abuse of the process of the court because it was filed to annoy and irritate the defendant. According to him, the abuse of court process in the instant case lies in the fact that the issues submitted before this Court in Suit No. FCT/HC/CV/1138/2008 have been stylishly created to be the basis of the instant suit. On the other hand, the view of the plaintiff's counsel is that this suit is not an abuse of court process because it has a distinct subject matter from Suit No. FCT/HC/CV/1138/2008. Abuse of court process is a term generally applied to a proceeding which is wanting in bona fides; and is frivolous, vexatious or oppressive. It is an abuse of court process when a party uses the issue of judicial process to the irritation or annoyance of his opponent. This will arise, for example, in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Ajuwa v. S.P.D.C. (Nig.) Ltd. (2008) 10 NWLR (pt. 1094) 64 and Jonpal Ltd. v. Afribank (Nig.) Ltd. (2002) 8 NWLR (pt. 822) 290. The key features of abuse of court process arising from the institution of multiplicity of actions are that the suits must be between the same parties and on the same subject matter. It is also important that the end result in the suits must be the same. See Ali v. Albishir (2008)3 NWLR (pt. 1073) 94. 8
The statement of claim in Suit No. FCT/HC/CV/1138/2008: Otunba Deji Osibogun v. The Economic and Financial Crimes Commission & Anor. is attached as Exhibit A to the affidavit in support of the application. In that suit, the plaintiff (who is the defendant herein), is challenging the sale of the property known as and called No. 36 Suez Crescent, Sanni Abacha Estate, Wuse Il, Abuja by the 1st defendant through the 2nd defendant. He seeks, inter alia, an order of specific performance directing the 1st defendant through the 2nd defendant to collect from him the sum of N280,000,000.00 being the sum offered and accepted for the sale of the property. In the instant case, the claims of the plaintiff are: damages of N50 million for libel arising from the defendant's solicitor's letter dated 4/6/2008 and the defendant's letter dated 6/6/2008 both addressed to the Chairman of the Economic and Financial Crimes Commission; and an order of injunction to restrain the defendant from publishing further libellous words against him. Without much ado, it is clear to me that the subject matter in this suit is different from the subject matter in Suit No. FCT/HC/CV/1138/2008. As I said earlier, where two or more suits are pending between the same parties on different subjects, there is no abuse of the process of the court. The defence counsel asked whether the defendant in this suit is expected to rely on the defence of justification even though his action instituted to challenge the sale of the said house is yet to be determined. Let me briefly remark that in Suit No. FCT/HC/CV/1138/2008, one of the issues is whether the 2nd defendant (i.e. the plaintiff herein) sold the property in issue in a 'fraudulent 9
manner' as alleged by the plaintiff. In the present case however, the main issue is whether the letters respectively written by and on behalf of the defendant were defamatory of the plaintiff. It may well be that the pieces of evidence in one of the cases may also be used in the other, nevertheless, this does not make this suit an abuse of the process of the court. The defence counsel further argued that there will be contradictory decisions of this Court in the two suits on the same set of documents. With due respect, I am not persuaded by this argument. In so far as the issues in the two cases are different, there cannot be contradictory decisions of this Court in the two suits. The decision of the Court is that this suit is not an abuse of court process. It remains to resolve the question whether the plaintiff has the requisite legal capacity to institute this suit. Mr. Olowookere pointed out that the tort of defamation is a special kind of tort which can be suffered by a person in law who has a reputation to protect. It was submitted on behalf of the defendant that the plaintiff is not a person in law and has no personality or reputation that can be defamed. On the other hand, Miss Kujore referred to the case of z. P. Industries Ltd. v. Samotech Ltd. (2007) 16 NWLR (pt. 1060) 315 and Order 10 rule 10(1) of the Rules of this Court, and argued that the plaintiff, being a partnership, has the requisite legal capacity to maintain an action for libel which affects its reputation and affects its business. 10
Order 10 rule 10(1) of the Rules of this Court provides: HAny two or more persons likely to benefit or be liable, as partners, may sue or be sued in the name of the partnership action arose." when the cause of In Z. P. Industries Ltd. v. Samotech Ltd. (supra) @ 338, paragraph G, the Court of Appeal held that: HActions in court can only be brought by natural or legal persons. As regards the latter, the legal person under the name by which it sues or is sued and examples are corporation sole, corporation aggregate, incorporated by special Act of the Legislature or under the Companies Act, bodies incorporated by foreign law. Partnerships, trade unions and friendly societies..." At page 348, paragraph D, it was further held that /la corporate body, i.e. a legal person could bring an action for libel if the defamatory matter is published against its business, or the management of its business or that the affairs of the company are conducted in a dishonest manner. /I The certificate of registration of the plaintiff as a business name dated 3/5/83 is attached to the plaintiff's counter affidavit as Exhibit Fl. In the light of the provision of Order 10 rule 10(1) of the Rules of this Court and the decision in the above case, I hold that the plaintiff has the legal capacity to institute this action. If it is otherwise, one wonders why 11
the defendant sued the plaintiff in Suit No. FCT/HC/CV/1138/2008 as 2nd defendant. The plaintiff can sue and be sued in the name of the partnership. In the end, the motion on notice of the defendant lacks merit. It is dismissed. I award cost of N4,OOO.OO in favour of the plaintiff payable by the defendant. HON. JUSTICE S. C. ORIJI (JUDGE) Appearances: 1. Miss Yewande Kujore & Jerry Akhazemea Esq. for the plaintiff. 2. Kolawole Olowookere Esq. & N. O. Henry Esq. for the defendant. 12