David Ogba Onuoha V. National Bank of Nigeria Ltd & Anor (1999)
LawGlobal-Hub Lead Judgment Report
SANUSI, J.C.A.
This is an appeal against the Ruling of Olusola Thomas J. of the Lagos Division of the Lagos State High Court delivered on the 22nd December, 1988. The 2nd Defendant now Appellant by way of preliminary objection challenged the jurisdiction of the lower court to entertain the suit before it as well as its competence to entertain the action on the ground that the said action amounts to abuse of court’s process. The trial judge dismissed the objection by the 2nd Defendant/Appellant. Aggrieved by the decision in the Ruling he appealed to this Court.
In his brief of argument filed on 18/3/96 Appellant identified and formulated two issues for determination, namely:
(a) Whether having regard to Order 1A Rules 3 & 4 of the High Court of Lagos State Civil Procedure Rules, the Lagos Judicial Division is a convenient forum to hear and adjudicate upon the suit.
(b) Whether the learned trial judge having regard to the affidavit evidence and the exhibits placed before him was right in holding that the issue of whether the suit amounts to an abuse of process of court could not be treated and/or determined as preliminary point of law.
The Appellant’s counsel at the hearing of this appeal abandoned the 1st issue for determination. The said issue and the ground of appeal related thereto were accordingly struck out leaving only one and that is, the 2nd issue for determination.
The Respondents’ counsel also adopted the remaining issue for determination as his own too.
Let me therefore deal with the only issue left, that is to say, whether the alleged abuse of court process could be determined as a preliminary point of law.
The learned trial judge in his ruling at p. 290 line 17- 25 of the Record of Proceeding held thus:-
“However, having regard to the point of law as to whether the suit before this court is maintainable when four other suits on the same subject matter as this suit had been filed against the 2nd defendant by agents of the plaintiff in the High Court of Aba, it will be necessary and desirable to ascertain facts beyond those that appear in the pleadings for this reason, I cannot order the trial of this question in controversy as a preliminary point of law.”
It is the submission of the learned counsel for the appellant that the learned trial judge erred in law when he held that the issue whether the suit amounts to an abuse of process of court could not be treated and/or determined as preliminary point of law. He submitted that trial of a preliminary issue is a departure from the beneficial object of the law that all disputes should be tried together, as such an order for trial of a preliminary issue is made only in exceptional circumstances or on special grounds. See Piercy v. Young (1880) 15 Ch. D 475 at 479.
The centre point of this issue is the alleged pendency of multiplicity of cases filed in Aba High Court involving the parties on the same subject matter and claiming same reliefs. The argument of the Appellant is that the Respondent by their attorney had instituted four actions at the High Court, Aba. He went further to say that the Respondent did not deny the pendency of the said suits. Below is what he asserted in his supporting affidavit sworn on 12th May, 1987. It reads thus:-
“19. That the plaintiffs know very well that the cause of action arose at Aba where all the transactions took place and where all the Defendants reside and carry on business whereupon they instituted the above actions there.
- That I am exposed to duplicity of actions in the two different jurisdiction in respect of the present suit.
- That the plaintiff has no other claim against me except those in the four suits now repeated in the present suit.”
On the other hand, in acounter affidavit sworn to on behalf of the Respondent/Plaintiff by one James Bola Adererni on 14/10/1997 there exist these averments:-
“3(xiv) In answer to the averments in paragraph 19 of the affidavit the plaintiffs repeat that the transaction between them and the 2nd Defendant took place in Hong Kong and not at Aba and they the plaintiffs did not authorise anybody to take action in respect of these matters.
(xvii) The plaintiffs state that the 2nd Defendant has not been exposed to any multiplicity of action at the instance of the plaintiffs as alleged in paragraph 28 of the affidavit.”
From the affidavit evidence reproduced above and adduced by both parties it is clear that the issue of pendency of cases before Imo State State High Court is the issue in controversy.
I am mindful of the fact that an abuse of process may lie in both proper and improper use of judicial process in litigation. However, the employment of judicial process is generally regarded as abuse in a situation where a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This can arise in instituting a multiplicity of actions on the same subject matter against the same opponent and on the same issues.
In the instant case the Respondent denied filing multiplicity of cases at Aba High Court or authorising anybody to do so on his behalf. Issues have therefore been joined which have to be resolved by the trial court.
In my view, the learned trial judge is wrong in declining to treat or deal with the issues raised before him relating to the abuse of court process. It is trite that preliminary issues of law raised should and ought to be dealt with in limine. The learned trial judge should have dealt with the issue once and for all since there has been laid before him affidavit evidence from both parties. It remains for him therefore to make pronouncements on the part that has preponderance over the other. The appeal is therefore meritorious. It therefore succeeds, I order that the case be remitted to the lower court for the trial judge to deal with the issue that he declined to resolve in his ruling. I make no order as to cost.
Other Citations: (1999)LCN/0624(CA)