Chief Inye C. Charlie Amachree V. Chief (Prof.) T.J.T. Princewill & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

GARBA, J.C.A.

The appellant on the 26th of November, 2004 filed a writ of summons and statement of claim in suit No. PHC/1992/2003, as plaintiff at the Rivers State High Court, Port Harcourt against the respondents’ herein, as defendants.

After service of the said summons and statement of claim on them, the 1st set of respondents/defendants filed a motion on the 18th of December, 2003 praying the High Court to dismiss the suit for being a gross abuse of court process. In a ruling on the 6th of April, 2004, the High Court granted the prayer and held that the suit was an abuse of its process in view of the suits No. PHC/624/2002, PHC/972/02 and PHC/620100 filed earlier.

This appeal filed on the 21st of May, 2004 is against that decision. The record of appeal was transmitted from the High Court on the 11th of August, 2004 to this court where in the course of proceedings, it was observed that the statement of claim compiled in the record at pages 6-14, was neither dated nor signed. Consequently, a dated and properly signed copy of the said statement of claim was later transmitted from the High Court on the 20th of June, 2005 as part of the record of the appeal.

The notice of appeal contained two (2) grounds of appeal from which the learned appellant’s counsel at page 2 of the appellant’s brief filed on the 7th of October, 2004 formulated a lone issue, which he submitted for determination in the appeal. It is thus: –

“Whether the learned trial Judge was right in law to hold that suit PHC/1999/2003 (sic) constituted an abuse of court process because of suit Nos. PHC/972/02, PHC/620/00 and PHC/(624) 02”.

The 1st and 2nd sets of the respondents’ brief (1st-13th respondents) was filed on the 18th of May, 2005 while the 14th respondent’s brief was filed on the 24th of November, 2005, both with leave of the court.

No brief of argument was filed by or for the 15th respondent. In the two (2) briefs filed for the respondents respectively, the issue raised in the appellant’s brief was adopted by learned counsel.

I agree with learned counsel that a reading of the grounds of appeal would show that the lone issue distilled there from is the pertinent one for decision in the appeal. It is therefore apt and I would proceed to consider the respective submissions by learned counsel. Learned counsel for the appellant opened his submissions with restatement of the discretion of the court to stop an abuse of its process and the judicial definition of what amounts to such an abuse.

He cited cases including C.B.N. v. Ahmed (2001) FWLR (56) 670 @ 689, (2001) 11 NWLR (Pt. 724) 369; N. V. Scheep v. MV “S, Araz” (2000) 82 LRCN 3131 @ 3187, (2000) 15 NWLR (Pt. 691) 622; Minister of Works & Housing v. Tomas (Nig.) Ltd. (2002) FWLR (124) 456 @ 487, (2002) 2 NWLR (Pt. 752) 740; on the points. It was submitted that a party contending that an abuse of the court process exists has the burden of proving –

(1) That an earlier process exists or is pending.

(2) That the earlier process was filed by or on behalf of the plaintiff in the latter suit with knowledge and consent.

(3) That the latter suit has similar parties, relief and subject matter as the earlier process.

Applying the above requirements to the suits relied on by the High Court in its decision, learned counsel referred to the reliefs in paragraph 3xi (a) and (b) of the statement of defence in suit No. PHC/972/02 and argued that none of them is contained in the reliefs sought in the suit No. PHC/1992/03, which are different. It was the further contention of counsel that the respondents as defendants in suit No. PHC/972/02 had conceded in their statement of defence that the suit was struck out but argued that it could only be resuscitated by relisting and not filing a fresh suit. According to counsel, the case of Kassim v. Ebert (1966) All NLR 54; (1966) 1 SCNLR 107 relied on by the respondents only relates to the liberty of a plaintiff to relist a case struck out and so did not say that a new case cannot be filed. He therefore submitted that since the suit was struck out, the latter suit, which seeks clearly different reliefs, cannot be held to be an improper use of the court’s process and that it was wrong in law for the High Court to hold that the appellant’s suit is an abuse of court process.