Chief A. A. Worlu V. Chief W. J. Wocha (JP) (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A (Delivering the Leading Judgment)

This appeal is against the Ruling of the High Court of Rivers State (Coram E.N.T. Ebete, J) delivered on 12th day of June 2004 dismissing the application of the Appellant, as the defendant/applicant thereat, seeking inter alia an order dismissing the suit against him on the ground that the suit was an abuse of court process. The Contention of the Appellant was that the respondent, as the plaintiff, had abused the process of the trial court by his filing of multiple suits involving the same parties over the same subject at the same time. The respondent, as the plaintiff, replied that his suit filed as a substitute for the one already pending could not amount to abuse of process.

The Appellant filed the motion praying for dismissal of the respondent’s suit No PHC/240/2002 on grounds of abuse of process of the court on 21st February, 2002. The 11 paragraph affidavit in support avers inter alia –

4. That I was sued to court by the plaintiff in suit No PHC/30/2002 CHIEF W.J. WOCHA (JP) v. CHIEF A.A. WORLU.
5. That the subject matter of that suit is a exactly (sic) same as this one. A certified true copy of the writ of summons and al it’s attachments are hereby attached and marked as Exhibit ‘A’.
6. That the suit No. PHC/30/2002 is currently pending at High Court No.5 Port Harcourt ‘wherein the presiding Judge adjourned the matter to the 5th day of March 2002 at the same instance of the plaintiff for motion for interlocutory injunction.
7. That while that suit is pending at High Court No.5 Port Harcourt the plaintiff filed the same matter in this court.

In response the respondent, as plaintiff, on 1st March 2002 filed his counter-affidavit averring that on 11th February 2002 he filed his Notice of Withdrawal of the suit no. PHC/30/2002 to discontinue the suit, and that the Notice dated 8th February 2002 and filed on 11th February 2002 was served on the defendant, this present appellant, on the same 11th February 2002. The said Notice of Intention to withdraw suit No PHC/30/2002 was attached as Exhibit ‘A’ to the counter-affidavit. The suit No PHC/30/2002 on the application of the respondent’s counsel in open court was struck out on 5th March 2002.

I notice from the record of the appeal that the motion, the subject of this appeal, was moved on 17th April, 2002, more than 32 days after suit no PHC/30/2002 had been struck out and that on 5th March 2002 Mr. Uchendu, counsel for the appellant, as the defendant, did not oppose the respondent’s application that the suit no PHC/30/2002 be struck out as he did not intend to proceed with it any further. He did this to pave way for the suit no PHC/240/2002.

The nature of the application to dismiss suit no. PHC/240/2002 on ground of abuse of court process was too dear decisively and finally, with the said suit as the suit no PHC/30/2002 had been withdrawn and struck out. The learned trial Judge was not convinced that suit no PHC/240/2002 constituted an abuse of the process of the trial court. On 12th July, 2002 the learned trial Judge ruled in favour of hearing suit no PHC/240/2002 on merit and consequently dismissed the appellant’s application; hence this ,appeal. The appeal was filed on 28th July, 2004 – 16 days after the decision/order dismissing the application.

At the hearing of the appeal on 28th April, 2010 we asked the counsel for the parties if the appeal was an interlocutory or final appeal? We asked this question quite cognissant of the rule of law that where the court raises any issue suo motu, the parties must be heard on the issue: OJUKWU v. YAR’ADUA (2009) ALL FWLR (pt.482) 1065 at 1143.

Mr. Uchendu for the appellant submitted that if the trial court agreed with their submission it was a trial appeal; that if the trial court did not agree with them then it was an interlocutory appeal, and that in the circumstance the appeal was against the final decision of the trial court. Mr. Nyenke for the respondent was more forthright.

He submitted that as the appeal was against the ruling dismissing an interlocutory application it was an interlocutory appeal and therefore ought to have been commenced only upon leave sought and granted. He urged us to dismiss the appeal.

The only instances where appeals lie as of right from the decision of the High Court to this court are listed in section 241 of the Constitution are as follows:-

(b) where the ground of appeal involves questions of law alone, decisions in any civil criminal Proceedings;

(c) decisions in any civil or criminal proceedings on questions at to the interpretation or application of this Constitution;

Most interlocutory appeals, not all, fall outside section 241 (1) of the constitution. Appeals under section 241 (1) of the constitution are filed or lodged as of right. Appeals under section 242 (1) of the Constitution are not as of right. They require leave of either this court or the court below. Appeals brought under section 241 (1) (b) & (c) of the Constitution particularly, though interlocutory, do not require leave. These are appeals in respect of decisions in any civil or criminal proceedings before a High Court on interpretation or application of the constitution, and where the ground of appeal against such decisions involves question:; of law alone. The grounds of appeal in the instant appeal appear to be one of law alone. As stated by this court (per Lokulo-Sodipe, JCA) in MIN.FED CAPITAL TERRITORY v. ABDULLAHI (2000) ALL FWLR (pt.507) 179 relying inter alia on MADUABUCHUKWU v. MADUABUCHUKWU (2006) ALL FWLR (pt.318) 695; ADETONA v. EDET (2001) 3 NWLR (pt.699) 186 etc a party appealing against an interlocutory decision, where the ground of appeal involves question of law alone, need not seek leave of court to appeal: section 241 (1) (b) of the Constitution.

However, he exercises the right of appeal strictly under section 24 Court of Appeal Act 2004 which prescribes the periods for filing notices of appeal. The period for giving notice of appeal, where the appeal is against interlocutory decision, is 14 days.