Group Captain E. E. Ibok (Rtd.) V. H. R. H. Etubom Eyo E. Eyo Honesty Ii (2006)

LawGlobal-Hub Lead Judgment Report

C. M. CHUKWUMA-ENEH. J.C.A.

This appeal is against the ruling of the High Court of Calabar Judicial Division (CORAM: Edem J.) delivered on 8/4/2004 dismissing the preliminary objection of the applicant (appellant) wherefore the applicant has challenged the trial court’s jurisdiction to hear an application to relist Suit No. HC/230/2000, which earlier had been dismissed upon the applicant’s (appellant’s) application as an abuse of court process.

Aggrieved by the decision the applicant (appellant) has appealed the decision by filing a notice of appeal containing 3 grounds of appeal. In the appellant’s brief of argument filed in the matter he has formulated 2 issues for determination and I set them as follows:

“(a) Whether the order of dismissal made by the trial Judge after hearing both parties was a final order and therefore on merit.

(b) Whether the trial court was functus officio in respect of the said after dismissing the suit and whether the court can entertain an application to relist the suit.”

The respondent has adopted the 2 issues for determination in this appeal as formulated by the appellant.

In the court below the respondent (as plaintiff) instituted an action Suit No. HC/230/2000 against the appellant (as defendant). Thereupon the appellant filed an application to dismiss the suit as an abuse of court process as there was already pending suit No.C/320/98 in the High Court of Calabar alleged to be by the same parties, on the same issues and subject matter as in the Suit No. HC/230/2000. The application to dismiss the Suit No. HC/230/2000 came up for hearing and the respondent apparently did not oppose the relief sought and so, without much ado the court below granted the prayer and dismissed the Suit NO.HC/230/2000 as an abuse of court process. The respondent having made a u-turn as it were, has brought another application to relist the Suit NO.HC/230/2000 and the appellant on this occasion filed a preliminary objection challenging the trial court’s jurisdiction to entertain the application to relist the Suit No. HC/230/2000 dismissed as an abuse of court process. The preliminary objection was dismissed on the ground that the ruling dismissing the said suit being an abuse of court process was not a final decision decided on the merits.

The appellant has argued in their brief of argument that the order of dismissing Suit No.HC/230/2000 as an abuse of court process has been made after hearing the parties, that is, on the merits and that the trial court has fallen into grave error in holding that in the application to admit it has not disposed of the rights of parties in the matter i.e. Suit No.HC/230/2000. In this regard they submit that there is nothing outstanding as between the parties after the order of dismissal has made with respect to the Suit No. HC/230/2000 which otherwise has been terminated by the said order. See: Akinsanya vs. U.B.A. LTD (1986) 4 NWLR (Pt. 35) 273 at 296; Omonuwa vs. Oshodin & Anor (1985) 2 SC 1 at 27 (1985) 2 NWLR (pt. 10) 924. They have also relied on Okon vs. Ekanem (2002) 15 NWLR (pt. 789) 106 at 112 – 113 to submit that the said order being a competent one and made within jurisdiction can only be set aside by an appellate court on appeal.

On Issue 2: The appellant submits that it is wrong for the trial court that dismissed a suit as Suit No. HC/230/2000 as constituting an abuse of court process to turn round to hear an application as the instant one to relist the same when it has become functus officio. See: Jimoh vs. Starco Nig. Ltd. (1998) 7 WLR (Pt. 558) at 523 at 525, H.C.M. vs. Iyoha (2001) 46 WLR p. 103 at 109, Anyaegbunam vs. A-G Anambra State (2001) 6 NWLR (Pt. 710) 532 at 535 and Jonason Triangle Ltd. vs. C. M. & Partners Ltd. (1999) 1 NWLR (Pt. 588) 555 at 559. He also has observed that the position contemplated as per Order 14 Rules 1 & 6 and Order 37 Rules 8 & 9 of Cross River State High Court (Civil Procedure) Rules 1987 again adverted to by the trial court in its ruling have to be distinguished from the position in the instant case to which the said Rules do not apply as the said cited rules deal with cases of default of appearance.

The court is urged to allow the appeal and set aside the said ruling and to strike the application by the respondent to relist the Suit No.HC/230/2000, which has been dismissed as an abuse of court process.

The respondent in his brief of argument has pointed out that an order or judgment does not need to be final to be on the merit and that a counter affidavit has been filed in the matter indicating their initial opposition to the application to dismiss Suit No. HC/230/2000 as an abuse of court process and that what transpired at the hearing of the said application cannot be suggestive of hearing on the merit, see: Akuneziri vs. Okenwa (2001) FWLR (Pt. 35) 604 at 610; (2000) 15 NWLR (Pt.691) 526. He has attempted to distinguish final from interlocutory decisions and in regard to which the respondent has referred to and relied on Ajuta II vs. Ngene (2002) FWLR (Pt. 88) 998; Bozson vs. Altrincham U.D.C (1903) 1 KB 547, Odutola vs. Oderinde (2004) 12 ALWLR (Pt. 888) 574 at 577, Nuhu vs. Ogele (2004) FWLR (Pt. 193) 362 at 365; (2003) 18 NWLR (Pt.852) 251.

The respondent has also berated the manner of the proceedings of 19/11/2002 in which no consideration whatsoever has been given to his counter-affidavit which otherwise would have showed his opposition to the application. It has also been suggested that as per Awuse vs. Odili & Ors (2003) 16 NSCQR 218 at 224 that a court of law can on some grounds as here over-rule itself hence the application to relist the said suit.

Arguing in regard to the trial court being functus officio the respondent has referred to Okon vs. Ekanem (2003) FWLR (Pt. 136) 981 at 987; (2002) 15 NWLR (Pt.789) 106 to contend that it must depend on the nature of the order/judgment made and the circumstances surrounding the same and that if an order/judgment is final and on the merits the court becomes functus officio but not otherwise. It is submitted that as the instant order has not been on the merits in that it has not pronounced on the rights of the parties that the said order cannot therefore be a final decision and so the trial court cannot be functus officio in the matter. Order 14 Rules 1 and 6 and Order 37 Rules 8 and 9, he submits have been referred to simply as examples where “dismissal” of an action has been interpreted to mean “striking out” in which event the said suit can be reinstated by application to relist.

The court is urged therefore, to dismiss the appeal and make an order remitting the case to the trial court to hear and determine the case on the merit.