Papersack (Nigeria) Ltd V. Alhaji J.a. Odutola & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

R. C. AGBO, J.C.A. (Delivering the Leading Judgment)

The respondents in this appeal by a writ of summons dated 26th October, 1994 instituted Suit No. LD/4831/94 against the appellant claiming N5 million general damages for trespass committed and still being committed by the defendant on the plaintiff’s land known as Plot 44 Block (d) Eric Moore Road, Iganmu industrial Estate Lagos. They also claimed perpetual injunction restraining the defendant from further trespassing on the said plaintiff’s property. The parties exchanged pleadings. The appellant thereafter in a motion on notice dated 28th February 2000 prayed the trial High Court as follows:-

“An order dismissing this action for lack of jurisdiction in this honourable court to entertain or determine the reliefs claimed by the plaintiff herein.”

The grounds upon which the above prayer was sought were:-

“(i) The plaintiff instituted this action against the defendant not withstanding an earlier action in Suit No. Ld/2209/93 instituted by the said plaintiff against the same defendant based on the same subject matter as the action herein;

(ii) The reliefs and the present action could have been adequately accommodated in Suit No. LD/605/99.

(iii) The instant action of the plaintiff is a gross abuse of the process of this Honourable Court.

(iv) The suit is filed by the plaintiff against the defendant in bad faith.”

In a considered ruling the trial court dismissed this application. This appeal is against that dismissal.

The appellant filed two grounds of appeal from which it distilled two issues for determination in its appellant’s brief of argument. The issues distilled are:-

“1. Whether the court below erred in law in dismissing the defendant/appellant’s application having held that in both actions the parties and the subject matter were one and the same?

2. Whether the court below misdirected itself in considering the doctrine of res judicata in reaching its decision given the fact that the sole ground relied upon by the defendant/appellant in its application was gross abuse of process?”

On the other hand the respondents distilled a sole issue for determination which is:-

“Is the court below not right in law in dismissing the defendant/appellant’s application?”

In arguing the appeal, the appellant sought for and was granted leave to lead further evidence. It however decided later not to. In its brief of argument the appellant argued that the respondent at the time they filed their suit the subject matter of this appeal, they already had in court Suit No. LD/2209/93 claiming possession of the same property the subject matter of Suit No. LD/4831/94 and that the respondents cannot maintain an action for possession and damages for trespass against the same person in relation to the same property. The appellant relied on Tijani vs. Akinwumi (1990) 1 NWLR (pt.125) 237 and Akano vs. Okunnade (1978) 3 SC 129. They argued further that an abuse of process occurs when claims in different actions based on the same facts between the same parties are filed in different courts in respect of the same right and subject matter. They relied on Ukachukwu vs Uba (2005) 18 NWLR (pt 956) 1. Appellant’s counsel finally argued that the later suit was contrived mala fide to harass the appellant and to interfere improperly in the administration of Justice by seeking to obtain two courts proprietary/ownership rights on the same property. It relied on Saraki vs. Kotoye (1992) 9 NWLR (pt. 264) 156 and African Renaissance Corporation vs. JDP Construction Nigeria Ltd (2003) 13 NLWR (pt 838) 609. The respondents on the other hand argued that the two suits are fundamentally different claims in respect of different causes of action and that two suits cannot conveniently be taken together. The respondents are right. The application is founded on abuse of process. The power of the court to ward off the abuse of its processes is founded on its inherent powers which it exercises to maintain the sanctity of its processes and dignity. “What constitutes abuse of process has been most thoroughly articulated by NikiTobi JSC in Ntuks vs. NPA (2007) 13 NWLR (Pt.1051) 392 at 419-420 thus:-