Christian Outreach Ministries Inc. & Ors V. Mrs. Ekanem Oku Cobham & Anor (2005)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the decision of the High Court of Cross River State, Calabar Division, Calabar, presided over by Francis Ilok, J., delivered in Suit No. HC/492/2001 on the 12/1/04.

The facts of the case are that on the 20/11/01, the appellants as plaintiffs instituted proceedings against the respondents as defendants seeking the following reliefs:

“A. A Declaration that for all intents and purposes, the plaintiffs are the tenants of the 1st Defendant at her property situate at Plot 37 Nsefik Eyo Layout, Ndidem Usang Iso Road, Calabar.

B. A Declaration that the 1st and 2nd Defendants induced the Plaintiffs to take over and complete the three bedroom uncompleted bungalow situate and lying at plot 37 Nsefik Eyo Layout belonging to the 1st Defendant.

C. N5million (five million naira) special and general damages for the expenses carried out by the Plaintiffs on the uncompleted property situate at plot 37 Nsefik Eyo Layout.

D. N10,000.000 (ten million naira) special and general damages for the wrongful ejection of the Plaintiffs from the said property situate at plot 37 Nsefik Eyo Layout on 13th July, 2001.

E. N10,000,000 (ten million naira) special and general damages for the losses, destruction and damages caused to the Plaintiffs properties in the course of the wrongful ejection of the Plaintiffs from plot 37 Nsefik Eyo Layout on 13th July, 2001.

F. N10,000,000 (ten million naira) for the malicious destruction of the worship center at plot 37 Nsefik Eyo Layout constructed by the 1st Plaintiff with the suggestion, direction, consent and authorization of the Defendants jointly and severally.

G. N15,000,000 (fifteen million naira) special and general damages for the physical, mental, psychological and social torture and embarrassments suffered by the Plaintiffs and their family members between 13th July, 2001, and November, 2001, during the period of wrongful ejection of the Plaintiffs and their family members from the property situate at plot 37 Nsefik Layout.

H. A Declaration that the Plaintiffs are entitled to occupy plot 37 Nsefik Eyo Layout until the expenses incurred in completing the property is defrayed by annual rent of N70,000 (seventy thousand naira) as agreed by the parties with effect from January, 2001.

I. An injunction to restrain the Defendants, their agents, privies, workmen, etc., jointly and individually from disturbing the Plaintiffs at plot 37 Nsefik Eyo Layout until the defrayment of all the expenses incurred by the ‘Plaintiffs in completing the said property.

J. An Order for the Defendants, jointly and severally, to pay N50,000,000 (fifty million naira) to the Plaintiffs as expenses incurred for the completion of the property and compensation in form of damages for the destruction of the Plaintiffs properties from the property at plot 37 Nsefik Eyo Layout.

– ALTERNATIVELY –

1. An Order for the Defendants, jointly and severally, to pay N50,000,000 (fifty million naira) to the Plaintiffs as expenses incurred for the completion of the property and compensation in form of damages for the destruction of the Plaintiffs properties from the property at plot 37 Nsefik Eyo Layout.”

On receipt of the writ the respondents brought a motion on notice dated 6/1/02 and filed on 8/1/02. The motion, which is supported by a 12-paragraph affidavit, is praying for the following orders:

“(1) An Order dismissing this suit in its entirety.

(2) Any further Order(s) as the Court may deem fit to make.”

The motion is premised on the following:

(1) This suit constitutes an abuse of the Court process because:

(i) There is a pending suit in the Chief Magistrate’s Court, Calabar, between the 2nd plaintiff and the 1st defendant concerning the same subject matter as in this case.

(ii) The subject matter of this suit is the same as the subject matter in Suit No. MC/628/2001 between Mrs. Ekanem Cobham and Rev. Emogo Mkpa Victor Bassey.

(2) The 1st plaintiff is not a juristic person with the capacity to sue and be sued.

(3) The 1st and 3rd plaintiffs have no locus standi.

It is of interest that I mention that prior to the suit filed by the appellants before the High Court in Suit No. HC/492/2001, the respondents had sued the appellants claiming the possession of the said premises in suit MC/628/2001.

The respondents subsequently filed a notice of preliminary objection dated on 23/1/02 and filed the same day. The preliminary point raised is that Suit No. MC/628/2001 as constituted is incurably incompetent and for an order of the court to strike it out for lack of jurisdiction.

The appellants reacted to the motion and notice of preliminary objection by filing a counter-affidavit of 22 paragraphs dated 23/3/02 and filed the same day. After hearing arguments from counsel, the lower Court Judge ruled in favour of the respondents and struck out Suit No. HC/492/2001.

Dissatisfied with the Ruling of the lower Court, the appellants appealed to this court on 5 grounds. From the 5 grounds of appeal, the appellants distilled 3 issues for determination in their appellants brief dated 11/8/04 and filed the same day. The issues for determination are as follows:

“(1) Whether the learned trial Judge was right to have dismissed the case of the plaintiffs/appellants instead of striking out same when the plaintiffs/appellants were yet to file their statement of claim and consequently issues were yet to be joined.

(2) Whether the learned trial Judge was right in holding that a claim for mere possession as disclosed in Suit No. MC/628/2001 was the same as the claim for declaration, damages and injunction which were the reliefs sought for in Suit No. HC/492/2001.

(3) Whether it did not amount to inadequate valuation of the arguments proffered by the plaintiffs/appellants, when the learned trial Judge in the cause of his ruling failed, neglected and/or refused to consider the case of Registered Trustees of Living Christ Mission vs. Dr. Osita Aduba & Mrs. Aduba (2000) 75 LRCN p. 257 at 260 cited by counsel to the appellants which authority was relevant to the appellants’ case.”

The respondents formulated 4 issues for the determination in their brief dated 27/8/04 and filed on 18/10/04. The issues are as follows:

“(1) What is the proper order the learned trial Judge should have made after he considered that the case of the appellants before the lower Court constitute an abuse of the court process?

(2) Whether the learned trial Judge was right to strike out the names of the 1st and 3rd appellants in view of the fact that 1st appellant was adjudged a non-juristic person and the 3rd appellant was found not to have the prerequisite standing to sue?

(3) Whether the learned trial Judge was right in holding that the relief sought by the 1st respondent in the Chief Magistrate’s Court were similar to those sought by the appellants in the High Court?

(4) Whether the failure of the learned trial Judge to consider and apply the principle enunciated by the Supreme Court decision in the case of Registered Trustees, Living Christ Mission vs. Dr. Osita Aduba & Mrs. Aduba (2000) 3 NWLR (Pt. 647) 14 occasioned a miscarriage of justice on the appellants?”

I have carefully examined, considered and reflected on the issues formulated by the parties in their respective briefs of arguments. The two sets of briefs are substantially similar and are quite compatible. However, in my considered view the issues formulated by the respondents correlate more with the grounds of appeal filed by the appellants and they appear succinct, comprehensive, more derivable and fairly arising from the grounds of appeal. For instance, the respondents’ Issue No. 1 is the same with the appellant’ Issue No. 1 and ground one. The respondents’ Issue No.2 relates to ground two. The appellants themselves did not raise any issue in their brief directly relating to ground 2, though they made some submissions relating to the issue in their brief. The respondents’ Issue No.3 is the same with the appellants’ Issue No.2 and it relates to ground 3. The respondents’ Issue no. 4 is the same with Issue No.3 of the appellants and it relates to ground 4. In the circumstances, I prefer the issue formulated by the respondents and I shall rely on them in the determination of this appeal.

On Issue No.1, ,the appellants’ counsel, Mr Otudor, submitted that as the appellants had not filed a statement of claim the court was handicapped in arriving at the conclusion as to what the appellants’ case would be so as to afford the latitude to dismiss the appellants’ case. He submitted that the lower Court by dismissing the appellants’ suit presupposes that the parties have been heard on the merit. He relied on Akuneziri vs. Okenwa & Ors. 4 NSCQR Vol. 12 page 280 and pointed out that the implication of dismissing the appellants’ case without any trial is far reaching, very decisive and terminal with the attendant structures of being shut out perpetually from the temple of justice. He also pointed out that even if Suit No. MC/628/2001 for possession in the Chief Magistrate Court is decided in the appellants favour, they would have remained barred from seeking redress for the damages to their properties against the respondents. He submitted that following the case of Yakubu vs. Governor of Kogi State (1997) 7 NWLR (Pt. 511) 66 at 71, the court should have struck out the case and not dismiss it. In his view, the lower Court did not exercise its discretion judicially and judiciously.

On Issue No.2, Mr. Otudor, submitted that Suit No. HC/492/2001 was not an abuse of the court process, because it raised 9 claims revolving round several issues while Suit No. MC/628/2001 raised only one claim. He pointed out that apart from the appellants’ claims (a) and (h), which are of such character as the one in Suit No. MC/628/2001 pending in the Magistrate Court, claims (b),(c),(d),(e),(f) & (g) are distinct and they fall within the jurisdiction of the High Court and they could have been resolved without any interference with and prejudice to the suit before the Magistrate Court. He referred to Egbuonu vs. Bornu R. T. C. (1997) 84 LRCN 2736 at 2740.

On Issue No.3, Mr. Otudor submitted that failure of the lower Court to follow the decision in Registered Trustees of Living Christ Mission vs. Dr. Osita Aduba & Mrs. Aduba (supra) is a substantial error which led to a miscarriage of justice.

Counsel for the respondents, Mrs. Obono-Obla submitted on Issues 1 and 2 that it is an abuse of the court process to institute multiplicity of actions in the same issue. In support of her submission, she cited the cases of Okafor vs. A-G, Anambra State (1991) 6 NWLR (Pt. 2000) 649 and Brawal Shipping (Nig.) Ltd. vs. Aphrodite (Nig.,) Ltd. (2004) 9 NWLR (Pt. 879) 462 – 465. It is the contention of the respondents that the institution of the suit in the High Court by the appellants was primarily motivated by the desperation to preempt the decision of the Chief Magistrate’s Court in the action instituted by the 1st respondent to recover possession of her property from the 2nd appellant and the essence was to truncate or stall the proper determination of the claim of the 1st respondent in the Chief Magistrate Court. She concluded that the intention of the appellant was an improper use of the judicial process to irritate or harass or annoy the respondent. Mrs. Obono-Obla submitted that where a party has been adjudged guilty of abuse of court process, his suit must be dismissed. He relied on Erabor vs. Major & Co. (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 300 at 301.

She pointed out that the respondents objected tot he appellants’ case on the grounds of abuse of the court process; lack of capacity of the 1st appellant and lack of locus standi of the 1st and 3rd appellants. The learned trial Judge having upheld the objections he was right to dismiss the suit.

On Issue 3, the respondents contended that the subject matter of the claims of the appellants in Suit No. HC/492/2001 is the same as those raised by the respondents at the Chief Magistrate Court in Suit No. MC/628/2001, therefore, the suit is vexations. He referred to Nnama vs. Nwanebe (1991) 2 NWLR (Pt.172) 181. The respondents argued that if the appellants’ claims are determined in the High Court the proceedings instituted by the 1st respondent in the Chief Magistrate Court for recovery of possession of Plot 37 Nsefik Eyo Layout, would be rendered otiose. Counsel submitted also that though the appellants argued that the lower Court ought to have struck out only claims (A) & (H) and assumed jurisdiction to determine claims (B), (C),(D),(E),(F) and (G), there is no way the court below could have entertained the rest of the claims because they are ancillary claims predicated on a determination of claims (A) and (H) thereof. She submitted further that a court cannot adjudicate over ancillary or incidental claim if it has no jurisdiction to entertain the main claim. He relied on Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517 and Ayeni vs. A-G and Commissioner for Justice, Ekiti State (2002) FWLR (Pt. 110) page 1737.

On Issue No.4, Mrs. Obono-Obla submitted that the facts and circumstances of the case of Aduba (supra) are diametrically opposed to the facts of this case on appeal and moreover the case will not apply where the party acted mala fide in filing a subsequent suit as in the case of the appellants. It was contended that this court would only reverse the decision of the learned trial Judge, where it is established that his refusal to consider and apply the principle laid down in Aduba’s case by the Supreme Court occasioned substantial miscarriage of justice on the appellants. She relied on Kraus Thompson Organisation Ltd. vs. University of Calabar (2004) 9 NWLR (Pt. 879) page 631.

The appellants on the receipt of the respondents’ brief of argument promptly filed a reply brief dated 29/10/04 and filed the same day. In the appellants’ reply brief, Mr. Otudor reiterated the fact that cause of action in Suit No. HC/492/2001 is different from the cause of action in Suit No. MC/628/2001 which is pending before the Chief Magistrate’s Court, Calabar. He argued that Suit No. HC/492/2001 was principally for damages for forceful and wrongful ejection and for the destruction of the appellants’ properties in the course of the wrongful ejection, therefore, their suit before the High Court was not wanting in bonafide.

The appellants also contended that it was only the 1st and 3rd appellants that were struck out, but the 2nd appellant was never struck out. They also contended that the 3rd appellant had the requisite standing to be a party to Suit No. HC/492/2001 because she was forcefully and wrongfully ejected from her residence, her properties were also destroyed and she suffered mental and psychological trauma. Further, it was submitted that the 3rd appellant need not be a party to the contract between the 1st respondent and the 2nd appellant for her to have capacity to sue. Furthermore, the appellants argued that the fact that the 1st respondent as plaintiff is entitled to possession in the claim before the Chief Magistrate Court does not absolve him from being liable to the 2nd, and 3rd appellants in damages for forceful and wrongful ejection.

I have carefully perused the records and I have given due consideration to the submissions of counsel in their briefs of argument. On Issue 1, it is my view that the question whether the learned trial Judge was right to have dismissed the case of the appellants instead of striking out same when the appellants were yet to file their statement of claim is of no moment because it has no legal foundation. On the contrary, the court has inherent jurisdiction to terminate proceedings before it at any stage, where it is apparent that such proceedings are incompetent, manifestly vexatious or scandalous. See Erabor vs. Major & Co. (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 300. Once a court is satisfied that any proceedings before it is an abuse of process it has the power, indeed the duty to dismiss it and not merely to strike it out. The argument that the appellant should have filed a statement of claim before the court can dismiss the suit on the ground of abuse of the process of court is misconceived and irrelevant in the circumstance. Where the Court comes to the conclusion that its process is abused, the proper order is that of dismissal of the process. The power of the court to dismiss proceedings, which are an abuse of its process, derives from the inherent jurisdiction of the court. See Arubo vs. Aiyelere (1993) 24 NSCC (Pt. 1) 255; African Re Corp vs. JDP Construction Nig. Ltd. (2002) 10 NSCQR 58; In CBN vs. Ahmed & Ors. (2001) 6 NSCQR 859, Ejuwunmi, JSC, said at page 276 that:

“Now, inherent jurisdiction or power is a necessary adjunct of powers conferred by the Rules and is invoked by a court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused. One most important head of such inherent powers is abuse of process which simply means that the process of the courts must not be abused.”

A court of law, which is as well a court of justice, will always prevent the improper use of its machinery and will not allow it to be used as a means of vexations and oppressive behaviour in the process of litigation. In Unifarm Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd. (2005) 3 NWLR (Pt. 911) 83 this Court held that:

“In a case of abuse of the process of the court, it may render the pending matter in court improperly there; should such matter be struck out or dismissed? Recent pronouncements of the Supreme Court appear to reason that such matters should be dismissed. See the opinion of Niki Tobi, JSC, in (i) African Reinsurance Corp. vs. J. D. P. Construction (Nig.) Ltd. (2003) 13 NWLR (Pt. 838) at 609 (ii) Arubo vs. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 (iii) Kode vs. Alhaji Yusuf (2001) 4 NWLR (Pt. 703) 392. It is safer in the event to prefer and adopt the view of dismissal of the case, where the process of the court is found to have been abused by the institution of two live issues simultaneously pending in court.”

However, before a party is admonished, it must be established that the erring party had abused the process of court by improper use of the process of the court. Regard being had to the facts of this case on appeal it is very fundamental to determine whether or not, the appellants by filing Suit No. HC/429/2001 before the High Court abused the process of the court.

In CBN vs. Ahmed & Ors. (supra) Ogundare, JSC, at page 899 – 899 said:

“What is meant by abuse of process of Court? It simply means that the process of the court has not been used bona fide and properly… Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexations or oppressive.

Abuse of process can also mean abuse of legal procedure or improper use of legal process.”

An abuse of process always involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. There is said to be an abuse of the process of the court when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues.

In the instant case on appeal, the trial Judge in the court below concluded at page 62 lines 33-38 of the record thus:

“…From the above, it is my considered opinion that the present Suit No. HC/492/2001, which was instituted later in time to Suit No. MC/628/2001 now pending at the Chief Magistrate’s Court, Calabar, and which also deals with the property at Plot 37 Nsefik Eyo Layout, Calabar, is an abuse of court process. This is so because 1st defendant who is the plaintiff at the Magistrate Court raised the issue of the present plaintiffs being tenants at will. This and whether the defendant is entitled to possession are issues that will be determined in the Magistrate’s Court matter and the present plaintiff ought to await the outcome of the Chief Magistrate’s Court matter before bringing the present action.”

The learned trial Judge failed to consider the reliefs of the appellants in claims (b), (c), (d), (e), (f), (g) – (j) and the alternative claim which are distinct and different from the claim for possession simplicter in the suit filed by the respondents before the Chief Magistrate Court, Calabar, in Suit No. MC/628/2001.

The claims for damages for wrongful and forceful ejection viet armis; damages to the properties of the appellants; are maintainable without any prejudice or interference with any other suit. It is not the law that once a party files another suit before another court on the subject matter, there is an abuse of court process. An act can give rise to different suits. A subject matter may very well give rise to different rights. See Unifarm Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd. (supra) at page 100. In Fasakin Foods (Nig.) Co. Ltd. vs. Shosanya (2003) 17 NWLR (Pt. 849) 237, this Court held that:

“It is not an abuse of court process for a defendant who conceives that he has reliefs which are different from those claimed against him by the plaintiff to initiate separate proceedings in court seeking those reliefs even though his claims and those of the plaintiff arise from the same facts and the same subject matter. In the instant case, the respondents’ suit is not an abuse of the process of court because the reliefs sought therein are distinct from that sought in the appellants’ suit”.

What transpired in the above case is similar to the facts of the instant case on appeal. The appellants’ suit is best described as a cross-action in a different court. It is not a case of two actions which one party has sued the same defendant.

It should be noted that accessibility to a court of law to vent a real or imagined grievance is generally regarded as a hallmark of democracy. It is only if mala fide can be read into the motive of resorting to a court of justice that the process initiating the suit can be properly described as an abuse of court process. It is not the exercise of the right per se, rather, it is the improper and irregular exercise, which constitutes an abuse. Where there is a right to bring an action, the state of mind of the person exercising the right cannot affect the validity or propriety of its exercise. See CBN vs. Ahmed (supra); Unifarm Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd. (supra) at page 100.

At this juncture, it becomes necessary to examine and reflect on Suit No. HC/492/2001 and Suit No. MC/628/2001. The claims of the appellants in Suit No. HC/MC/492/2001 have been reproduced earlier on in this judgment, I only need now to reproduce the claims of the respondents before the Chief Magistrate’s Court in Suit No. MC/628/2001 at page 31 of the record. It reads:

“MRS. EKANEM COBHAM PLAINTIFF

AND

REV. BASSEY DEFENDANT

PARTICULARS OF CLAIM

The plaintiff is entitled to the possession of premises apartment situate at Plot 37 Nsefik Eyo Layout, Calabar, which were let by the defendant under the TENANT AT WILL, which the said tenant expired by Notice to Quit given to the defendant by the plaintiff on 1st June, 2001, in which the defendant refused and neglect to deliver up possession of the said premises and still retain same (a duplicate copy of the said Notice hereto annexed).

WHEREAS the Plaintiff claim as follows:

(a) The possession of the said premises.”

A comparative examination of both claims HC/492/2001 and MC/628/2001 clearly reveal that the parties in the two suits are different and they are apparently not the same. That much was conceded by the trial Judge in his judgment see pages 62 – 63 of the record. Secondly, the issues in Suit No. HC/492/2001 are more than the lone issue in Suit No. MC/628/2001. Although, all the issues are from the same subject matter they are not dealing with the same rights. Different suits can emanate from the same subject matter but with different rights and reliefs.

In the case on appeal, I observed that the only way the appellants could redress their grievances was to sue before the High Court as they did, regard being had to the nature and quantum of their claim. The trial Judge in his ruling at page 63 lines 12 – 14 of the record stated that the appellants should have brought their claims as a defence in Suit No. MC/628/2001. There is no way for the appellants to bring their claims as a defence to an action. A mere defence however strong, cannot constitute the requisite reliefs that can assuage the damage suffered by the appellants following the destruction of their properties. The alternative would have been to file a counter-claim before the Chief Magistrate Court in the suit pending before it as suggested by the court below. Obviously, that alternative is not expedient because it would have raised jurisdictional problem given the nature and quantum of the claim in Suit No. HC/492/2001. Also, the Magistrate Court cannot give declaratory judgment. The maxim Ubi Jus Ibi Remedium is very sacrosanct and must be given full effect in all its ramification. Where there is a wrong, there is a remedy, Having dismissed the claims of the appellants their right to redress and to fair hearing has been prematurely foreclosed.

The allegation of the appellants on the writ under paragraphs (b), (c), (e), (f) and (g) are claims for special and general damages from the respondents for expenses carried out by the appellants on the uncompleted property situate at Plot 37 Nsefik Eyo Layout, wrongful ejection of the appellants from the said property, malicious destruction of the worship center built on the property by the appellants and damages for losses, destruction and damages caused to the appellants’ properties, etc. It would appear that the appellants have bona fide in seeking to justify their claims by having their suit decided in the appropriate forum where the relevant facts will properly be stated and issues joined on the issues. It is also significant to note that the claim of the appellants in paragraph (b) set out elsewhere, indicate that the respondents induced the appellants to take over and complete the three bedroom uncompleted bungalow situate and lying at Plot 37 Nsefik Eyo Layout belonging to the 1st respondent. If this is so then the matter had gone beyond a mere landlord and tenant relationship therefore it would appear that the appellants cannot be justifiably denied the opportunity to have the case tried on pleadings. No doubt, this can only be done in the High Court. Having regard to the foregoing, I resolve Issue 1 in favour of the appellants.

On Issue 2, it is my considered opinion that it was wrong for the lower Court to have dealt with the issue of the juristic personality of the 1st appellant and the locus standi of the 3rd appellant at the initial stage of the proceedings. While in the appropriate cases the court may detect the juristic personality of a party from the writ, in this case it was necessary to have allowed the appellants to file their statement of claim so that they will give full facts relating to the juristic personality of the 1st appellant.

In respect of the 3rd appellant, her name was struck out on the ground that she has no locus standi. Now, what is the meaning of “Locus Standi”. Locus Standi or standing to sue is the legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. In short, locus standi is the right of appearance in a court of justice in a given question. See Guda vs. Kitta (1999) 12 NWLR (Pt. 629) 21; Elendu vs. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 and Ogbuechi vs. Governor of Imo State (1995) 9 NWLR (Pt. 417) 53.

For a person to have locus standi in an action, he must be able to show that his civil rights and obligations have been or are in danger of being infringed.

It is well settled law that the locus standi of a plaintiff is determinable from the totality of all averments in his or her statement of claim since it is the statement of claim that has to be carefully scrutinized with a view to ascertaining whether or not it has disclosed sufficient legal interest and how such interest has arisen in the subject matter of the action. See Owoduni vs. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt. 675) 315 and Aromolo vs. Akapo (2003) 8 NWLR (Pt.823) 451.

In the instant case on appeal, the appellants have only filed their writ of summons. Obviously, a writ of summons gives just a prelude that sets an action in motion. It is in the statement of claim that a plaintiff ventilates the facts and circumstances and capacity in which he initiates the claim. Consequently, it does not stand to reason to explore the locus standi of a plaintiff from the writ of summons. In P.V.C. Ltd. vs. Lawal (2005) 3 NWLR (Pt. 911) 121, this Court held at page 142 that:

“In determining locus standi of a party, the entire statement of claim should be looked into and not merely a part of it. Also only the statement of claim of a party should be considered.”

See also Global Trans Oceanic S. A. vs. Free Ent. (Nig.) Ltd. (2001) 5 NWLR (Pt. 706) 426. In the circumstance, it will appear that the lower Court acted hastily in dealing with the issue of the locus standi of the 3rd appellant without the benefit of the statement of claim.

I observed that the court below relied on the averments in the supporting affidavit of the respondents and the counter-affidavit filed by the appellants in arriving at its conclusion that the 3rd appellant has no locus standi.

On the contrary, the averments of the appellants in their counter-affidavit at page 35 of the record show that the 3rd appellant has locus standi. For instance, paragraphs 8, 9, 10 and 17 of the counter-affidavit reads as follows:

“8. That all the plaintiffs/respondents have contract with the defendants directly and indirectly.

9. That all the plaintiffs/respondents are tenants to the defendants/applicants and/or are interested parties in the subject matter of this suit.
10. It is proper for each and/or all the plaintiffs/respondents to sue the defendants/applicants because the subject matter and issues in this case involve all the parties concerned in this suit.
11. The plaintiffs and in particular the 2nd plaintiff/respondents are the tenants of the applicants in this motion.”

From the above averments, it is very clear and undeniable that the 2nd and 3rd appellants are tenants of the respondents. Relating the averments in paragraphs 8, 9, 10 and 17 of the appellants’ counter-affidavit aforesaid to reliefs (d), (e), (f) and (g) in the writ of summons in Suit No.HC/492/2001, it is clear to me that the 2nd and 3rd appellants have locus standi to sue. The 3rd appellant was a tenant in the property at No. 37 Nsefik Eyo Layout, Calabar, when she and the others were forcefully and wrongfully ejected from the property, which was her residence. She alleged that her properties were allegedly destroyed and she suffered mental and psychological trauma.

Locus standi raises the question whether the person whose standing is in issue is the proper person to seek an adjudication of the issue. It is not whether the issue itself is justiciable or whether the plaintiff has sufficient legal interest that is whether there is a breach of the civil rights and obligations of the plaintiff. The twin factors to be considered in determining locus standi are that:

(1) the plaintiff must be able to show that his civil rights and obligation have been or is in danger of being violated or infringed.

(2) the plaintiff must have a justiciable dispute with the defendant.

These two factors must co-exist to establish the locus standi of the plaintiff. See Adesanya vs. President of Federal Republic of Nigeria & 1 Or. (1981) All NLR 1; Ogbuchi vs. Governor of Imo State (1995) 9 NWLR (Pt. 417) 53; A-G, Fed. vs. A-G, States (2001) 7 NSCQR 458; Okafor vs. Onedibe (supra) and Oloriode vs. Oyebi (1984) 5 SC 1.

In the instant case on appeal, the 3rd appellant, Mrs. Bassey has shown that her civil rights and obligation have been infringed. The wrongful act allegedly committed was the forceful and wrongful ejection and the damages and or destruction of her properties resulting therefrom. She alleged also that she suffered mental and psychological trauma. It has not been denied that she resides in the property and that she suffered the consequences of the forceful and wrongful ejection. Therefore, she need not be a party to the contract between the 1st respondent and the 2nd appellant for her to have the capacity to sue and there is nothing in law stopping her from maintaining an action against the respondents. From the facts and circumstances in the case on appeal and particularly the finding of the lower court at page 62 lines 23 – 28 where it said:

“Again, it is also clear that the present case 2nd plaintiff (now 2nd appellant) is claiming the sum of N10 million Special and General damages for ejection in this suit which was filed on 12-11-2001 despite being restored to possession of the subject matter of both suits which is Plot 37 Nsefik Eyo Layout, Ndidem Usang Iso Road, Calabar, on 9-11-2001 by order of the Chief Magistrate’s Court…”

Even if the 1st respondent was entitled to possession as claimed, the law frowns on the use of force or arms. See Ojukwu vs. Military Governor of Lagos State (1985) NWLR (Pt. 10) p.806, wherein the Supreme Court held that:

“If anyone is wrongfully dispossessed the law must be vindicated by turning out the wrong doer and restoring the dispossessed to possession by an interim order before the formal rights of the parties are determined.”

I believe this was why the appellants were restored to possession. However, the 3rd appellant who was forcefully and wrongfully ejected from her residence, her properties destroyed with the attendant mental and psychological trauma suffered, is perfectly entitled to sue. The question of privity of contract between the 3rd appellant and the 1st respondent does not arise in the circumstance. The fact that she is the wife of the 2nd appellant cannot be employed to deny her access to court guaranteed under Section 36(1) of the 1999 Constitution. Perhaps, if the lower court had been patient to follow the proper procedure it would have allowed the appellants to file their statement of claim. This way, the court below would have had a clear or clearer picture. I conclude therefore, that the 3rd appellant from the foregoing reasons had locus standi to sue and to maintain the action before the court below.

It is also significant that the locus standi of the 2nd appellant was not challenged and his name was not struck out from the proceedings for want of juristic personality. Therefore, Suit No. HC/492/2001 is maintainable by the 2nd appellant alone. I, therefore, resolve Issue No.2 in favour of the appellants.

In respect of Issue No.3, that is whether the trial Judge was right in holding that the relief sought by the 1st respondent in the Chief Magistrate Court were similar to those sought by the appellants in the High Court, I have already dealt sufficiently with the issue while dealing with Issue 1 so, I need not repeat myself. It is sufficient to say that the claims in Suit No. MC/628/2001 and Suit No. HC/492/2001 are manifestly different. In the first suit, the respondent as landlord was asking for possession, while the appellants in the second suit were asking for declaratory reliefs, damages, and injunction. These are reliefs, which could not have been sought for in the case before the Chief Magistrate. There is no dispute that the appellants were wrongfully ejected from their house and their properties destroyed. There is also no dispute that they suffered physical mental and psychological social trauma caused by respondents who acted viet arms. All that the appellants have done in Suit HC/492/2001 is to ventilate their own grievances against the respondents in another court over several other issues arising from the same subject- matter. This is quite permissible in law as was the case in Unifarm Ind. Ltd. vs. Oceanic Bank Int’l (Nig.) Ltd. (supra). The resort to different remedies was an exercise of their constitutional right. See Benaplastic Industries Ltd. vs. Vasilyer (1999) 10 NWLR (Pt.624) 620; Harriman VS. Harriman (1989) 5 NWLR (Pt. 119) 6 and Fasakin Foods (Nig.) Co. Ltd. vs. Shosanya (supra). It is equally important to note that the claims in paragraphs (b), (c), (d), (e), (f) & (g) are not ancillary or incidental claims and they are not inextricably tied to or bound with the lone claim for possession in Suit No. MC/628/2001. From the foregoing, I resolve Issue No.3 in favour of the appellants.

I now come to Issue No.4. Having carefully gone through the case of Registered Trustees of Living Christ Mission vs. Dr. Osita Aduba & Mrs. Aduba (2000) 75 LRCN 257 at 260, though the facts are not exactly identical, they are substantially similar. In that case before the writ of summons was taken out by the respondents in the High Court, the appellants had instituted an action in Suit MO/660/92 against the respondents in the Magistrate Court for possession of the premises known as 42 Mba Road, Inland Town, Onitsha, and for mesne profit. The respondents upon being served with the writ of summons of the appellants in suit No. 0/390/92 moved the High court to strike out the action. The ground for their prayer was that it was an abuse of the court process for the appellants to have instituted an action against the respondents when they were aware that they had, already pending in the Magistrate Court, similar action concerning the same issues as the new suit against them. After argument of counsel on both sides on issues raised, the learned trial Judge refused the respondents’ prayer to strike out the case. On appeal to the Court of Appeal, the appeal was allowed and the order, of the learned trial Judge refusing to strike out the case of the appellants was set aside. The Court of Appeal further ordered a stay of proceedings of the Suit No. MC/660/92 in the magistrate Court. On appeal to the Supreme Court, the court at pages 21 – 22 laid down the principle to be followed in hearing cross-actions instituted in different courts thus:

“If there are two courts which are faced with substantially the same question it is desirable to be sure that that question is debated in only one of those courts if by that means justice can be done.

… If there were two proceedings going on in Court ‘A’ and Court ‘B’ the proceedings in Court ‘A’ relating to a number of questions, only one of which was raised in the proceedings in Court ‘B’ was the only question raised in that Court. That would be a very strong argument for saying that the convenient course would be to allow that question to be dealt with in the proceedings in Court ‘A’ which would dispose of the matter raised in the proceedings in Court ‘B’ whereas if the reverse course is taken the same would not apply…

Where more issues in a matter are raised in one Court than in another court, a more convenient court should be allowed to resolve those issues in the interest of justice. More so, if the power of one of the courts to entertain one or more issues is in doubt.”

It is crystal clear that the issues raised in Suit HC/492/2001 are more than the lone issue raised in Suit No. MC/628/2001 pending in the Chief Magistrate Court. Moreover, the claims in Suit No. HC/492/2001 contain declaratory reliefs, special and general damages which amounts are far in excess of the jurisdiction of the Chief Magistrate Court. Following the Aduba’s case Suit No. HC/492/2001 would be better dealt with in the High Court although it was filed later in time. I have already held that the suit filed by the appellants is devoid of any mala fide. In my considered view, the action of the appellants did not amount to making use of judicial process to the irritation and annoyance of the respondents such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue. See African Reinsurance Corporation vs. J. D. P. Construction Ltd. (supra). I am in agreement with counsel for the respondents that the applicability of an earlier decision as a precedent for a subsequent one is determined by the facts of the later case, which must be identical or similar to the facts of the earlier case. The facts of the two cases must be either the same or at least similar before the decision in one can be used as a guide to the decision in another case. See Global Trans Oceanic S. A. vs. Ent. (Nig.) Ltd. (2001) 8 NWLR (Pt. 706) 426 at 430 and Anaedobe vs. Ofodile (2001) 5 NWLR (Pt. 706) 364. What happened in the Aduba’s case is exactly what the appellants have done in this case on appeal. Save for the 5th relief in Aduba’s case, which is for an order of court transferring Suit No. MC/660/92 from the Magistrate Court, Onitsha, to the High Court for trial, the case is completely on all fours with this case on appeal therefore the principles enunciated in that case apply with equal force in this case of appeal.

The argument that because the appellants did not ask for the transfer of Suit No.MC/628/2001 from the Magistrate Court to the High Court therefore, the principles enunciated in Aduba’s case would not apply in this case on appeal appears grossly misconceived. It is an attempt to make a distinction without a difference. The principle in Aduba’s case is not based on whether or not there was an order for transfer. The case of Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt. 117) 517 cited by Mrs. Obono-Obla is inapplicable to the facts of this case on appeal. The issue here is not the want of jurisdiction to entertain the main claim of the appellants in Suit No. HC/492/2001. Similarly, the case of Ayeni vs. A-G and Commissioner of Justice, Ekiti State (supra) is irrelevant and inapplicable. That case dealt with the situation where the main claim in the suit was statute barred and the reliefs claimed in the statement of claim were ancillary to the main claim. That is not the case here. The claims of the appellants were not statute barred. Also, the case of Nnana vs. Nwanebe (supra) has no relevance to this case. In any case, the Supreme Court in the Aduba’s case has enjoined courts to be circumspect about the decision in Nnana vs. Nwanebe (supra). The case of NIMB Ltd. vs. UBN Ltd. (2004) 12 NWLR (Pt.888) 599 is quite distinguishable from the facts of the appeal on hand. That case dealt with applications filed in courts of coordinate jurisdiction. The second application filed in one court was in respect of a relief already granted by another court of co-ordinate jurisdiction. That is not the situation here. I am of the considered view that the court below should have followed and applied the decision in the Aduba’s case. Its refusal or neglect to follow the case is a substantial error that occasioned a miscarriage of justice. In Eze & Ors vs. Obiefuna & Ors (1995) 31 LRCN page 177, it was held that:

“An error is substantial when it occasioned miscarriage of justice that an appellate court is going to interfere”.From the foregoing, I resolve Issue No.4 in favour of the appellants.

Accordingly, I find merit in this appeal and I hereby allow it. The Ruling of Justice F. U. Ilok, in Suit No. HC/492/2001 delivered on 12th of January, 2004, is hereby set aside. I order that the case, Suit No. HC/492/2001 be remitted to the High Court for trial on merit before another Judge of the High Court of Cross River State.

I award costs of N5,000.00 in favour of the appellants.

Appeal allowed.

Other Citations: (2005)LCN/1757(CA)