Mr. Isaac Ogbonmwan V. Mr. J. O. Aghimien (2016)

LawGlobal-Hub Lead Judgment Report

UGOCHUKWU ANTHONY OGAKWU, J.C.A.

The dispute between the parties to this appeal is in respect of a piece or parcel of land situate in Benin City. Arising from this contest, an action was instituted by the Appellant herein in Suit No. B/568/1998. The Respondent filed a counterclaim in the said action. However the Appellant?s claim was struck out for want of diligent prosecution and the Respondent?s counterclaim proceeded to hearing. Attempts by the Appellant to defend the counterclaim were unsuccessful. Fortuitously, the hearing of the said counterclaim had to commence de novo before another Judge and the Appellant was now granted extension of time to file a defence to the Counterclaim. For whatever reason, the Respondent thereafter withdrew the said counterclaim.

?Meanwhile, the application of the Appellant to relist the main claim in Suit No. B/568/1998 was unsuccessful, consequent upon which the Appellant instituted a fresh action over the same disputed land in Suit No. B/394/2007. The Appellant later discontinued this action and the same was struck out. Upon the refusal of the

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Appellant?s application to set aside the order striking out Suit No. B/568/1998 and for the same to be relisted, the Appellant appealed against the refusal to set aside the said order striking out Suit No. B/568/1998. Apart from filing the said Notice of Appeal, the Appellant did nothing further in respect of the appeal.

Subsequently the Appellant instituted yet another action in respect of the said disputed land in Suit No. B/146/2009. Pleadings were filed and exchanged and the Respondent in his Statement of Defence raised the point of law that Suit No. B/146/2009 was an abuse of Court process on grounds of multiplicity of actions. This point of law was heard on a motion on notice filed by the Respondent and in a considered Ruling delivered on 17th January 2013, the High Court of Edo State upheld the point of law that the action in Suit No. B/146/2009 was an abuse of process and consequently dismissed the action. The said Ruling is at pages 83-90 of the Records.
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The Appellant being dissatisfied with the said Ruling appealed against the same on 14th February 2013. The Notice of Appeal is at pages 91-93 of the Records. The Records of Appeal

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having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Appellant?s Brief of Argument was filed on 16th May 2013 while the Respondent?s Brief was filed on 2nd July 2013 and regularised by order of Court made on 18th May 2016. The Appellant filed a Reply Brief on 24th February 2016.

The Appellant distilled two issues for determination as follows:
1. Whether or not a Court is functus officio, over a matter that was struck out by another Court of co-ordinate jurisdiction for lack of diligent prosecution.
2. Whether or not the refiling of a matter earlier struck out by a Court amount to an abuse of Court processes.

The Respondent on his part also formulated two issues for determination, namely:
1. Whether the learned trial judge was right when he held that fresh Suit No. B/146/2009 as instituted by the Appellant herein was an abuse of Court process?
2. Whether the learned trial judge was therefore right when he held that he lacked jurisdiction to hear Suit No. B/146/2009 being functus officio so to do?
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At the hearing of the appeal, I. N. Ewansiha, Esq., learned counsel for the

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Appellant adopted the submissions in the briefs of argument filed by the Appellant and he urged the Court to set aside the decision of the lower Court and order for a trial of the matter. In the same vein, A. Osayomwanbor, Esq., of counsel for the Respondent adopted and relied on the submissions in the Respondent?s Brief. He further referred to the case of UGESE vs. SIKI (2007) 8 NWLR (PT 1037) 452 at 463, 464, 466 and 467 and he urged the Court to dismiss the appeal.

The quodlibet in this matter revolves around whether Suit No. B/146/2009 is an abuse of Court process. It is where it is an abuse of process that the usual stigma of the Court being functus officio or lacking jurisdiction would attach. In this wise therefore, it seems to me that the pertinent question in this appeal is whether the said Suit No. B/146/2009 is an abuse of Court process. This will accordingly form the fulcrum of the resolution of this appeal and the issue number one distilled by the Respondent is bespoke and apt. It is therefore on the basis of the said issue that I will consider the submissions of learned counsel and determine this appeal.

ISSUE FOR DETERMINATION<br< p=””