Ule Idoko V. Hyacinth Ollo Ogbeikwu (2002)

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T. MUHAMMAD, J.C.A.

This appeal is against the decision of the High Court of Benue State, holden at Otukpo, given by the Honourable Justice J. T. Tur on the 11th day of May, 1995, pursuant to an application by the respondent herein for an order striking out the counter-claim in suit No. OHC/55/93.

The appellant herein was the counter-claimant/respondent at the High Court while the respondent herein was the defendant/applicant.

The facts of this case as presented before the lower court are that the appellant who was the defendant had been appointed as the ‘Ukpoju’ (market master) of Eke Market more than 30 years prior to the filing of the suit.

In October, 1992, opponents of the appellant purportedly removed the appellant as ‘the Ukpoju’ of Eke Market.

Several attempts were made to amicably resolve the matter but the same yielded no fruitful results, despite the intervention of traditional rulers and officials of the Okpokwu Local Government which had taken over the market prior to the alleged removal of the appellant.

In January, 1993, the Okpokwu Local Government in the

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“1. Whether or not the counter-claim filed by the appellant was maintainable and was not frivolous when it was dismissed.

2. Whether or not the trial court was right in entertaining and granting the respondent’s application.
3. Whether or not the doctrine of lis pendens applies to the appointment of the respondent conveyed by the Okpokwu Local Government letter dated 19th of July, 1997.
4. Whether or not under the 1988 High Court (Civil Procedure) Rules of Benue State, the trial court was right to have dismissed the appellant’s counter-claim.”

Issues formulated by the parties appear the same except for the wordings. I shall adopt the appellant’s issues in treating the appeal.

In issue No. 1 learned counsel for the appellant argued that the provision relied upon by the learned trial Judge i.e. Order 74 rule 4 of the Benue State High Court (Civil Procedure) Rules, Edict No. 28 of 1988 was non existent. Learned counsel cited Order 24 rule 4 of the Edict No. 28 of 1988 as more appropriate though applied to some limited circumstances. He submitted further that the counterclaim before the lower court was not frivolous, vexatious and an abuse of process as the appellant’s appointment was subsisting as at the time it was filed.

Learned counsel for the respondent submitted on behalf of the respondent that by the time letter No. OKP/LGA/546/77 of 13/1/93, was written there was nothing to ‘confirm’ because the elders of Eke Community had withdrawn the appointment of the appellant more than three months before the letter was issued. That the admissions in paragraph 3 of the appellant’s statement of defence and paragraph 3 of the statement of counter-claim coupled with the effect of the Okpokwu Local Government letters Ref. No. OKP/LGA/GEN/546 dated 19th July, 1994 addressed to the Eke Community Elders, headed ‘Confirmation of Appointment of ‘Ukpoju’ Market Overseer and OKP/LGA/GEN/541/Vol.l dated 13th September, 1994 headed “Re-Confirmation of Appointment of Eke Market Master, Hyacinth Olio Ogbeikwu, addressed to the respondent, indicated that the appropriate authority had terminated the appointment of the appellant and confirmed the appointment of the respondent. Further, the counter-claim was no longer maintainable when it was dismissed by the lower court under Order 24 rule 4 of the Benue State High Court Civil Procedure Rules Edict, 1988. Authorities cited by the appellant’s counsel were not exhaustive of the situations in which a suit may be frivolous and an abuse of process of the court.

It is quite clear from the record of this appeal that the appellant as defendant, while responding to the statement of claim embedded a counter-claim in his statement of defence. In the counter-claim,

the appellant prayed for the following reliefs:

“7. Wherefore the defendant claims as follow:

i. A declaration that the defendant is still the market master or Ukpoj u of Eke Market.

II. An order of perpetual injunction restraining the plaintiff, his servants, agents or privies from parading himself or holding plaintiff out or suffering himself to be held out as the Ukpoju of Eke Market.”

In another development, the respondent as plaintiff filed a motion on notice asking the lower court for the following reliefs:

“1. Leave of the Honourable court to apply for and withdraw and or discontinue the suit No. OHC/55/94 now before this Honourable Court for it has been overtaken by events.

2. An order of this Honourable Court striking out the above suit, for the applicant having been appointed the ‘Dkpoju’ market overseer of Eke market by the Okokwu Local Government, the relief he sought in the substantive suit has ceased to exist elsewhere.
3. And for such order or further orders as the Honourable Court may deem fit to make in the circumstances.”

In his ruling the learned trial Judge held, inter alia: “After some legal skirmishes Hyacinth Ollo Ogbeikwu applied and withdraw his suit on 19/10/94 but the court barred him from instituting any fresh action thereafter based on the same facts …. In other words, the applicant is no longer a plaintiff in this suit; he remains only a defendant in the counter-claim filed by Ule Idoko.”

This confirms to me that the main suit was no more on the court’s cause list. What remained on the cause list was the counter-claim filed by the appellant and I presume that was the one considered and upon which a ruling – subject-matter of this appeal – was delivered on 11/5/95 by the learned trial Judge. I come to this conclusion because of what the learned trial Judge said in his ruling.

“In other words, the applicant is no longer a plaintiff in this suit, he remains only a defendant in the counterclaim filed by Ule Idoko …. A counter-claim is a separate cause of action and only the person who filed it can withdraw it. The defendant who applies that a counterclaim be struck out should satisfy the court that the claim comes within the provisions of Order 74 rule 4 of the High Court (Civil Procedure) Rules, Edict No. 28 of 1988.”

The learned trial Judge considered the affidavit evidence on the motion and invoked the provisions of Order 24 rule 4 of the Benue State High Court (Civil Procedure) Rules, 1988 to dismiss the suit in its entirety.

In dismissing the suit, the learned trial Judge commented:

“From all I have said, as the law now stands, I am yet to see what purpose it will serve to continue to maintain this suit on the cause list. I agree with the learned counsel to the applicant that this suit is not only frivolous but vexatious; it is an abuse of the court process.”

The provision of Order 24 rule 4 of the Benue State High Court of Justice (Civil Procedure) Rules, 1988 provides:

“The court or a Judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous, or vexatious, the court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

A suit may be said to be frivolous if it has no legal basis or where it is filed often, to harass or extort money from the defendant (see Blacks Law Dictionary, Seventh Edition, 1999). It is corollary to a vexatious suit which is a suit instituted maliciously and without good cause.

On abuse of process, let me repeat what I once said in Expo Ltd. v. Pafab Enterprises Ltd. (1999) 2 NWLR (Pt.591) 449 at 462:

“Abuse of court process simply means that the process of the court has not been used bona fide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and the efficient and effective administration of justice. See Arubo v. Aiyeleru (1993) 3 NWLR (Pt.280) 126 at 142 and 146.

Indeed, various circumstances abound which give rise to an abuse of process. These can be summarised as follows:-

“1. Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue, or a multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.

2. Instituting different actions between the same parties simultaneously in different courts even though on different grounds.
3. Where two different processes are used in respect of the exercise of the same right for example a cross-appeal and a respondent’s notice.
4. Where an application is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by courts below.
5. Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness. See: Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156.”

These are what make a suit or an application to be an abuse of court process. See Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156; Pavex Int. Co. Nig. Ltd. v. IBWA (1994) 5 NWLR (Pt.347) 685; In Re: The Vessel M.V. Lupex (1993) 2 NWLR (Pt.278) 670; Carribbean Trading & Fidelity Corp. v. NNPC. (1991) 6 NWLR (Pt.l97) 352 at 362; C.O.P v. Fasehun (1997) 6 NWLR (Pt. 507) 170; Expo Ltd v. Pafab Ent. Ltd. (supra); Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659; Owonikoko v. Arowosaiye (1997) 10 NWLR (Pt. 523) 61; Adeyemo v. Ida (1998) 4 NWLR (Pt. 546) 504; Okafor & Ors. v. The A.-G. & Commissioner for Justice (1991) 6 NWLR (Pt. 200) 659 SC; (1991) 7 SCNJ (Pt. 11) 345.

The relevant question now is: was the counter-claim filed by the appellant frivolous, vexatious and an abuse of process? The learned trial Judge found in the affirmative, relying on paragraphs 13-17 of the affidavit in support of the motion under consideration by him. But for clarity sake, let me reproduce these paragraphs:

“13. That by the combined effects of exhibits Band C, the respondent is no longer the ‘Ukpoju’ market overseer of Eke Market, having been removed by the appropriate authority over the said market.

14. That even though exhibit C was handed over to me since, I have never performed any duties as Ukpoju of Eke market or harassed or interfered in any way with the performance by the respondent of his duties as Ukpoju of Eke market.
15. That I now apply to this honourable court to strike out the counter-claim of the respondent because it is no longer maintainable by reason of exhibit B and C.
16. That I also apply to the honourable court to discharge the order of interlocutory injunction made against me on 22nd June, 1994 so that I can perform my duties as the ‘Ukpoju’ market overseer of Eke Market in accordance with exhibits Band C hereto.
17. That I swear to this affidavit bona fide.”

From the above averments, I fail to see any of the circumstances that make an application or suit to be an abuse of process, vexatious or frivolous present in the counter-claim filed. Even the applicant himself asked the court to strike out the counter-claim (paragraph 15 above). I am of the firm view that it was wrong for the learned trial Judge to have declared the appellant’s counter-claim to be frivolous, vexatious and an abuse of the court’s process. The counterclaim in my view is a valid claim independent of the main claim.

The learned trial Judge should have allowed the parties to follow the normal course of determining such issues to finality. I resolve issue No.1 in favour of the appellant.

I think I should skip the 2nd and 3rd issues formulated by the appellant in order to consider issue No.4 because of its fundamental relevance to this appeal and because it may dispose of the other issues. In his argument, learned counsel for the appellant submitted that Order 24 of Edict No. 28 deals in its entirety with proceedings in lieu of demurrer and before such provisions could be invoked a point of law must be raised in the pleading of the party in whose favour it was to be invoked. No point of law was raised in the respondent’s defence to the counter-claim. He submitted further that the trial court made a fatal flaw by dismissing the action when the respondent had sought only a striking out of the matter. If a wrong procedure had been adopted the suit ought to have been struck out and not dismissed, so that the court does not shut the door on the appellant and bar him from exploring further remedies. Learned counsel for the respondent argued that the dismissal was in order as there was no longer any reasonable cause of action for the appellant to maintain the counter-claim. The court was vested with power under Order 24 rule 4 of Benue State High Court (Civil Procedure) Rules, Edict No. 28 of 1988, to exercise it’s discretion to strike out or dismiss the action if no reasonable cause of action is disclosed or the action or defence is shown by the pleadings to be frivolous or vexatious.

The provisions of Order 24 rule 4 of the Benue State High Court (Civil Procedure) Rules, Edict of 1988 as seen earlier give discretion to the learned trial Judge or the court, to strike out, dismiss or stay an action or enter judgment, as the case may be, when it discloses no reasonable cause of action or that the defence shown appears frivolous, vexatious or an abuse of court process. I treated this aspect of the issue while dealing with issue No.1. It is true that judicial discretion is the exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law but it is not a concept that knows no bounds. It is a well established principle of law that all judicial discretion must be exercised according to common sense and justice and, if it tends to create miscarriage of justice it is obvious that a higher court will interfere with that exercise. Odusote v. Odusote (1971) 1 All NLR 219 at 223. Though a trial Judge needs not give reasons for exercising his discretion, Igboanugo v. State (1992) 2 NWLR (Pt.28) 176, yet it has to be exercised judicially and judiciously. And an appellate court will not normally set aside or interfere with the exercise of discretion of the lower court once it is clear that it was exercised on just and legal reasons that is judicially and judicously invoked. See; Royal Exchange Assurance (Nig.) Ltd. v. Aswani ile Industries Ltd. (1992) 3 NWLR (pt.227) 1 at page 5; Saraki v. Kotoye (supra).In the appeal on hand, I think it was wrong for the learned trial Judge to have gone to consider the merit of the counter-claim while determining a motion on notice for the striking out of the counter-claim. The learned trial Judge himself ought to have noted that where he said, for instance:

“Lastly, even if I am wrong. I feel strongly in the alternative that where a plaintiff complains that a person

placed in an office should be restrained from so acting for one reason or the other, the proper way is to refer the matter to the body vested with the power of determination of such questions. In this case the power to appoint market overseers rests, from the Exhibits annexed thereto in the Okpokwu Local Government. That is confirmed by Exhibits ‘B’ and ‘C’. There is no evidence contrary to the above facts. The proper procedure challenging that appointment is by judicial review under Order 43 of the High Court (Civil Procedure) Rules, Edict No. 28 of 1988.” (Italics supplied for emphasis)

Again, when the applicant was asking for an order striking out the counter-claim, I see no reason why the learned trial Judge should have been overzealous and more anxious to grant an order dismissing same. The court is not a charitable organisation. The long established practice is that the court does not grant what has not been asked for.

See: Kaliel v. Aliero (1999) 4 NWLR (Pt.597) 139; Edebiri v. Edebiri (1997) 4 NWLR (Pt.498) 165; Ezeonwu v. Onyechi (1996) 3 NWLR (Pt.438) 499; Elumeze v. Elumeze (1969) 1 All NLR 311.

It behoves me to state that there are marked distinction between an order of striking out and one of dismissal of an action. An order of dismissal puts an end to a claim. It concludes the matter against the plaintiff forever, subject of course, to appeal. It concludes the rights of the parties for all purposes. Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208 at page 223. An order of dismissal will be appropriately made where a cause is heard on its merit with all the necessary patties before the court and the plaintiff fails to prove his case. See Olayioye v. Oso (1969) 1All NLR 281; Green v. Green (1987) 3 NWLR (Pt.61) 480; Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370 at 395. An order of dismissal can be properly made where the point of Litis Contestatio had been reached and there was the divergence of the evidence led from the facts which were a fundamental issue. Eronini v. Iheuko (1989) 2 NWLR (Pt.101) 46 at 56. On the other hand, a striking out order is one in which the claim is kept alive. It is akin to a non-suit order which decides nothing as regards the matter in dispute, but merely gets ride of the pending action, leaving the plaintiff at liberty to begin de novo either in the same or a subsequent suit. An order of striking out can appropriately be made where there is no satisfactory evidence enabling the court to give judgment to either of the parties and wronging neither. Its effect is to terminate the proceedings in which it is made. Omeregbe v. Lawani (1980) 3-4 SC 108; Dada v. Ogunremi (1967) NMLR 181. It can also be made where it appears on the record of the case taken as a whole that the plaintiff has not failed in toto and it appears also that the defendant would not be entitled to the judgment of the court. See African Continental Bank v. Yesufu (1980) 1-2 S.C. 49, at page 61 per Bello, JSC (as he then was) where he stated:

“It seems to me from the authorities that in considering whether to grant a non-suit instead of dismissal, the court has to weigh all the facts and circumstances of the case and see whether the scale of justice has tilted on the side of a non-suit, or on the side of dismissal. In other words, the court has to do what is fair and just to the parties in the circumstance, of the case.”

Thus, where the dismissal of the claim might work injustice to the plaintiff and no injustice or hardship need result to the defendant in striking out the claim, an order of striking out would produce a juster result, then the court should grant such an order. See Awosanya v. Alhaji Algata and Madam H. Eko (1965) 1 All NLR 228.

It is my view that a striking out order of the counter-claim would have been the right order to be made by the lower court in this case rather than that of dismissal. Issue No.4 is resolved in favour of the appellant.

I do not think I should treat issues Nos. 2 and 3 as the latter issue, especially, touches fundamentally on the merit of the counter-claim. Equally, issue No.2 which appears to have emanated from ground 3 of the grounds of appeal, is still on the appointment of the respondent as the market master and restraint placed on him by the lower court on 22nd June, 1994, relating to the main suit which was withdrawn and struck out. Thus, this appeal can conveniently be disposed of based on issues Nos. 1 and 4 and I so hold.

In the final result, I find merit in the appeal and same is allowed by me. I set aside the order of dismissal made by the lower court in respect of the appellant’s counter-claim. I substitute same with an order, striking out the counter-claim before the lower court. The appellant is entitled to costs of N3,000.00 against the respondent.

Other Citations: 2002)LCN/1155(CA)