IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE HIGH COURT OF OWERRI JUDICIAL DIVISION
HOLDEN AT HIGH COURT OF JUSTICE, OWERRI
BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA
THIS THURSDAY THE 3RD DAY OF OCTOBER 2024
SUIT NO: HOW/726/2023
BETWEEN
1.ELDER CELESTINE OBIWUNMA
2.ELDER COLLINS AMAECHI
3.MR. DOMINIC UGWUEGBULAM PLAINTIFFS/RESPONDENT
4.COMRADE DOMNIC CHIAGOROM
5.ROWLAND AGUGUO
6.JAMES IGBOLEKU
7.ONYEKACHI OPARAEKE
(Suing for themselves and on behalf of
the Odukwu/Oduta Kindred of Umuimeka
Olaukwu in Owerri West L.G.A. of Imo State)
AND
1.GASVINE PROPERTIES LTD
2.EBUKA NZENWOKE …………….. DEFENDANTS/APPLICANT
3.MRS. NGOZI GODONS
RULING
The 1st and 2nd Defendants’ motion in SUIT NO: HOW/726/2023 revolves around a request to dismiss or strike out the Plaintiffs’ suit based on claims that it is an abuse of court process and discloses no valid cause of action. The Defendants/Applicants, Gasvine Properties Ltd. and Ebuka Nzenwoke, brought this motion pursuant to Order 15 Rule 18 and Order 22 Rule (1)(2) of the Imo State High Court (Civil Procedure) Rules, 2017, as well as under the court’s inherent jurisdiction.
In this Motion on Notice the 1st and 2nd Defendants/Applicants are seeking an order from the court to: Dismiss or strike out the Plaintiffs’ suit for being incompetent and an abuse of court process.
The motion is founded on the following grounds:
- The Plaintiffs’ suit is an abuse of court processes.
- The suit represents a form of forum shopping intended to avoid the consequences of an earlier suit (HOW/238/18).
- The suit will result in multiplicity of actions on the same subject matter.
- The action is meant to annoy and irritate the parties in both suits.
The affidavit, deposed by Chinwe Ebere, a secretary at the law firm representing the Defendants, asserts the following:
The deponent was informed by her principal counsel, Emeka O. Nwagwu, SAN, that the Plaintiffs’ suit is an abuse of court process. It is alleged that the current suit would result in multiplicity of suits over the same issue, causing confusion and miscarriage of justice. The suit seeks to revisit issues already addressed in Suit No. HOW/238/18, and the documents related to this are annexed as Exhibits A, B, and C. The deponent affirms that it is within the court’s power to dismiss a suit when it becomes clear that it is incompetent.
The Defendants’ counsel in the address reiterates that the motion seeks to dismiss or strike out the Plaintiffs’ suit as incompetent and an abuse of court process. The motion is supported by an affidavit of 5 paragraphs, as already detailed.
The Defendants’ counsel contends that the Plaintiffs lack the consent and approval of the principal members of the Odukwu/Odunta kindred to bring the action.
The counsel distilled two issues:
- Whether the Plaintiffs’ suit is an abuse of process of court and should be dismissed.
- Whether the suit is an attempt to relitigate issues already determined in Suit No. HOW/238/18.
The counsel consolidates the two issues for joint consideration, advancing the following arguments:
The rule against multiplicity of actions: It is undesirable for matters involving the same parties and claims to be heard in multiple courts as this risks conflicting judgments.
Abuse of court process occurs when there is forum shopping or relitigation of issues already decided. The Defendants argue that the Plaintiffs are using this new suit to irritate the Defendants and attempt to avoid the decision made in Suit No. HOW/238/18.
Citing the Supreme Court in cases such as Mohammed vs. Gwarzo and Arubo vs. Aiyeleru, the Defendants argue that relitigation or filing a second suit on the same subject matter, with the same parties, constitutes abuse.
Relitigation and Issue Estoppel: The counsel argues that the subject matter in both Suit No. HOW/238/18 and the current suit is substantially the same, with similar facts and parties involved. Citing Arubo vs. Aiyeleru, the counsel emphasizes that re-arguing issues already settled in a prior case is an abuse of process and goes against the public policy of preventing multiple trials on the same matter (rooted in the Latin maxim “Nemo debet bis vexari pro una et eadem causa” — no one should be vexed twice for the same cause).
Earlier Decision in Suit No. HOW/238/18:
In Suit No. HOW/238/18, the court had issued a ruling on 27/1/2022 regarding the division of the land in dispute, concluding that an agreement between the parties had already settled the matter.
The counsel submits that the Plaintiffs’ current suit attempts to undermine or obtain a conflicting decision regarding the same land and issues, which the court should not entertain.
In conclusion, the counsel urges the court to dismiss the Plaintiffs’ suit in its entirety, as it constitutes a clear abuse of court process. The Defendants argue that the Plaintiffs are abusing the court process by filing a new suit that involves the same parties and subject matter as a previously decided case (HOW/238/18). They assert that this suit is an attempt to relitigate already settled issues and constitutes forum shopping to avoid the prior ruling. As such, they ask the court to dismiss the case for being vexatious, repetitive, and an abuse of judicial resources.
In response to the Defendants/Applicants’ motion to dismiss or strike out the suit, the Plaintiffs/Respondents filed a Counter Affidavit and a Written Address through their counsel, opposing the application.
The counter-affidavit was deposed by Collins Amaechi, the 2nd Plaintiff in the suit. The Plaintiffs argue that the Defendants’ application is misleading and lacks merit, and they provide several points of opposition:
The Plaintiffs assert that all the paragraphs of the Defendants’ supporting affidavit are false. They argue that the present suit does not constitute an abuse of court process, as the parties and issues in both suits (Suit No. HOW/238/18 and the present suit) are not the same.
According to the Plaintiffs, the present suit is about declaration of title to land and trespass, while Suit No. HOW/238/18 involved the sharing of family property and the mode of division. They emphasize that the parties in the two suits are different. In the previous suit, all parties were from the same village, while in the present suit, the Defendants are from different communities and even different local governments. This distinction, they argue, invalidates the Defendants’ claim that the suits are similar.
The Plaintiffs point out that the Defendants’ reliance on Exhibit B (the amended claim from Suit No. HOW/238/18) is misplaced because this amended claim was never formally moved or granted by the court. This, they argue, makes Exhibit B irrelevant in determining the current suit.
The subject matter in the current suit concerns trespass by the Defendants, who allegedly are strangers to the Plaintiffs’ land. In contrast, the previous suit did not involve trespass but rather focused on jointly-owned family land. Therefore, the ownership and trespass claims in the present suit are distinct from the issues in Suit No. HOW/238/18.
The Plaintiffs argue that the Defendants have not specified how the issues or parties in the two suits are the same. They claim that the Defendants’ affidavit is vague and designed to confuse the court.The Plaintiffs emphasize that while they (the Plaintiffs) are from Umuimeka Olaukwu in Owerri West L.G.A., the Defendants are from a completely different community and local government, thus reinforcing the claim that the two suits are separate and unrelated. The Plaintiffs assert that the Defendants’ application is a calculated attempt to mislead the court and avoid liability for their alleged trespass onto the Plaintiffs’ land. The Plaintiffs contend that the exhibits attached to the Defendants’ application—Exhibits A, B, and C—are irrelevant to the present case. Exhibit A concerns a ruling in a contempt proceeding involving different parties, while Exhibit C is a statement of defense from the previous suit, which has no bearing on the current case involving different issues and parties.
The Plaintiffs’ counsel filed written address. The counsel reiterates that the Plaintiffs’ counter-affidavit opposes the Defendants’ application, and they rely on Exhibits CA1 and CA2 attached to their counter-affidavit.
The counsel highlighted the facts in the Plaintiffs’ counter-affidavit are highlighted, emphasizing the differences between the two suits and refuting the Defendants’ claims of abuse of process.
The counsel raised sole issue for the court’s consideration:
“Whether the Defendants’ application is frivolous and lacks merit.”
The Plaintiffs argue that the Defendants’ application lacks merit for the following reasons:
Failure to Prove Abuse of Process: The Defendants allege that the Plaintiffs’ suit constitutes an abuse of court process, but they have not provided any specific facts to substantiate this claim. There is no evidence of forum shopping, and the Defendants fail to demonstrate how the Plaintiffs’ suit is irritating or vexatious.
Differences in the Parties and Issues: For a suit to be considered an abuse of process, the parties, subject matter, and issues must be the same in both suits. The Plaintiffs argue that in the present case, the Defendants have not established that these elements are the same as in Suit No. HOW/238/18. The Defendants in the two suits are from different communities, and the issues in both suits are distinct.
Irrelevance of Exhibits: The Plaintiffs maintain that the exhibits attached to the Defendants’ affidavit are irrelevant. Exhibit A pertains to a contempt ruling in a different case, and Exhibit B (the amended claim) was never formally moved in the previous suit, making it legally inconsequential. Exhibit C, the statement of defense in Suit No. HOW/238/18, is irrelevant because the Defendants in that suit are different from those in the current case.
Plaintiffs’ Right to Sue for Trespass: The Plaintiffs argue that they have the right to bring a suit for trespass against the Defendants, who are strangers to their land, regardless of any pending suit involving land partitioning among members of their kindred. The fact that the Plaintiffs are in court regarding the partitioning of family land in Suit No. HOW/238/18 does not preclude them from filing a separate suit against trespassers.
Misinterpretation of Legal Principles: The Plaintiffs contend that the Defendants have misinterpreted the law on abuse of process and issue estoppel. They assert that the ARUBO vs. AIYELERU case cited by the Defendants does not apply here, as it pertains to relitigation of already-decided issues. In this case, the issues between the parties are new and unrelated to those previously decided.
The Plaintiffs’ counsel concludes by urging the court to dismiss the Defendants’ application. They argue that the application is frivolous and lacks merit, and it is a deliberate attempt by the Defendants to confuse the court and avoid answering for their alleged unlawful trespass onto the Plaintiffs’ land.
The Plaintiffs/Respondents argue that their suit is neither an abuse of court process nor a relitigation of issues previously decided. They emphasize that the parties and subject matter in the current suit are different from those in Suit No. HOW/238/18. The Plaintiffs maintain that their current suit is focused on trespass and ownership of the land, while the previous suit dealt with partitioning of jointly owned family property. Therefore, they ask the court to dismiss the Defendants’ application and allow the case to proceed on its merits.
RESOLUTION OF MATTER:
The issues at hand in SUIT NO: HOW/726/2023 primarily revolve around the question of whether the current suit brought by the Plaintiffs/Respondents is an abuse of court process and whether it seeks to relitigate issues already determined in Suit No. HOW/238/18. I have considered the application before me. I am of the view that the following are the key issues for determination in the contest between the Plaintiffs/Respondents and the Defendants/Applicants in SUIT NO: HOW/726/2023, based on the motion to dismiss and the counter affidavit in opposition:
- Whether the Plaintiffs’ suit constitutes an abuse of court process:
Defendants’ position: The Defendants argue that the Plaintiffs’ suit is an abuse of court process, as it allegedly seeks to relitigate issues already determined in Suit No. HOW/238/18 and involves the same parties and subject matter. They assert that the suit is a form of forum shopping and an attempt to avoid the outcome of the earlier suit.
Plaintiffs’ position: The Plaintiffs argue that the current suit is not an abuse of court process because it involves different issues, different parties, and different subject matter from Suit No. HOW/238/18. They maintain that while the previous suit concerned the partitioning of family property, the current suit is about trespass and ownership of land, involving strangers to the original dispute.
Abuse of court process refers to the improper use of judicial processes by a party in litigation. It occurs when a party initiates multiple legal actions on the same subject matter with the same parties, or engages in forum shopping, filing frivolous or vexatious claims to harass the opposing party or obtain an unfair advantage.
The Supreme Court of Nigeria in Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 held that abuse of court process involves:
- Instituting multiple actions between the same parties on the same issues.
- Instituting different actions in different courts simultaneously on the same subject matter.
- Using judicial processes improperly to interfere with the due administration of justice.
In Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205, the Supreme Court explained that abuse of process also arises where a party tries to relitigate issues already settled by a competent court.
The Defendants/Applicants claim that the Plaintiffs’ suit is an abuse of process because it is allegedly an attempt to relitigate issues already decided in Suit No. HOW/238/18, which involved the same land and parties. They argue that the Plaintiffs’ action constitutes forum shopping and is vexatious, designed to irritate and frustrate the Defendants.
On the other hand, the Plaintiffs contend that the current suit involves different issues (trespass and declaration of title) and different parties (Defendants are strangers from different communities), and is therefore not an abuse of process. They argue that the subject matter of the earlier suit was partitioning of family land, while the present suit focuses on a trespass action by outsiders.
In Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154, the court emphasized that for a suit to constitute an abuse of court process, it must involve the same parties, the same subject matter, and the same issues in both cases. This principle was further reinforced in Owonikoko v. Arowosaye (1997) 10 NWLR (Pt. 523) 61, where the court held that a case does not amount to an abuse of process simply because it relates to the same land but involves different issues or different parties.
Grounded on the legal guides, the court finds that the current suit involves different parties and issues from the previous suit, it is not considered an abuse of process on this ground. The burden of proving that the suits are the same lies with the Defendants/Applicants, and they must show that the subject matter, parties, and issues are identical. If they fail to establish this, the Plaintiffs’ suit cannot be deemed an abuse of court process.
- Whether the parties in the present suit are the same as those in Suit No. HOW/238/18:
Defendants’ position: The Defendants claim that the parties in both suits are substantially the same, particularly the Plaintiffs, making the current suit redundant and an abuse of court process.
Plaintiffs’ position: The Plaintiffs argue that the Defendants in the present suit are different from those in Suit No. HOW/238/18. They emphasize that the Defendants in the current suit are from a different community and local government and are alleged trespassers on the Plaintiffs’ land, making the parties distinct.
For a suit to constitute an abuse of court process due to multiplicity of actions, the parties involved must be the same. The principle of res judicata or issue estoppel applies where the parties are the same and the issues have already been resolved in a previous suit. Res judicata prevents the re-litigation of a matter that has already been decided by a court of competent jurisdiction.
In N.D.I.C. v. F.M.B.N. (1997) 2 NWLR (Pt. 490) 735, the court held that for the defense of res judicata to succeed, the parties in the current suit must be the same or have privity (a close or mutual interest) with the parties in the earlier suit.
The Defendants argue that the parties in both Suit No. HOW/238/18 and the present case are substantially the same. However, the Plaintiffs counter that while the Plaintiffs in both suits may be the same, the Defendants in the current suit are different, being from a different community and local government.
In Pavex Int’l Co. Ltd. v. IBWA (1997) 7 NWLR (Pt. 514) 605, the court held that the fact that some of the parties are the same in two suits does not make the cases identical if the Defendants in the second suit are new parties who were not part of the original suit.
In Madukolu v. Nkemdilim (1962) 2 SCNLR 341, the Supreme Court set out the test for determining the jurisdiction of a court and emphasized that a suit would only amount to an abuse of process if the same parties and the same issues are involved in both cases.
The court concludes that the Defendants in the current suit are different from the Defendants in Suit No. HOW/238/18, the Plaintiffs’ action is not be barred by res judicata. The court therefore find that the difference in Defendants renders the suits distinct and the Plaintiffs are entitled to pursue their claims for trespass.
- Whether the subject matter and issues in the present suit are the same as in Suit No. HOW/238/18:
Defendants’ position: The Defendants argue that the subject matter and issues in both suits are the same, with both suits involving the same land and the same reliefs (declarations of ownership). They suggest that the present suit is an attempt to get a conflicting judgment on the same issue.
Plaintiffs’ position: The Plaintiffs contend that the subject matter in the current suit is trespass on the land by strangers (the Defendants), while the previous suit concerned the partitioning of family property. They maintain that the issues in both suits are fundamentally different and cannot be conveniently joined.
For a case to be an abuse of process or to trigger the doctrine of res judicata, the subject matter and the issues in both suits must be the same. In Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1, the court held that res judicata applies only where the subject matter and issues in the subsequent suit have been directly decided in the previous suit by a court of competent jurisdiction.
The Defendants claim that the subject matter (the land in dispute) is the same in both cases and that the current suit seeks a declaration of ownership, which was already addressed in the previous suit. However, the Plaintiffs argue that the previous suit was about the partitioning of family land, while the current suit involves trespass and ownership claims against new Defendants who are outsiders to the original land dispute.
In Adomba v. Odiese (1990) 1 NWLR (Pt. 125) 165, the court held that even if the land in dispute is the same, the issues in the two cases must also be identical for res judicata to apply. If the claims in the second suit arise from a new set of facts (such as trespass by new parties), the second suit can proceed.
The court finds that the issues in the two suits are different, such as the distinction between a claim for partition of family land and a claim for trespass and ownership against new Defendants, then the present suit is not be considered a relitigation of already-decided matters. The Plaintiffs’ action is not be barred.
- Whether the exhibits (particularly Exhibits A, B, and C) relied upon by the Defendants are relevant and applicable to the present suit:
Defendants’ position: The Defendants attach exhibits to support their claim that the current suit is a relitigation of issues already decided. They rely on Exhibit A (a ruling from Suit No. HOW/238/18), Exhibit B (the amended claim from the previous suit), and Exhibit C (the statement of defense from the previous suit).
Plaintiffs’ position: The Plaintiffs argue that these exhibits are irrelevant to the current suit. They contend that Exhibit A concerns a contempt ruling against different parties, Exhibit B was never formally amended or granted, and Exhibit C involves a defense from a different case with different parties.
For an exhibit to be relied upon in a court of law, it must be relevant to the facts in issue. In Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356, the court held that exhibits that are irrelevant or that do not directly pertain to the facts of the case cannot be relied upon.
The Defendants rely on Exhibits A, B, and C to argue that the current suit is a relitigation of issues already decided. However, the Plaintiffs contend that these exhibits are irrelevant because:
- Exhibit A concerns a contempt ruling involving different parties.
- Exhibit B (amended claim in the previous suit) was never formally moved or granted.
- Exhibit C (statement of defense in the previous suit) relates to different issues and parties.
The court has carefully assessed the relevance of each exhibit. The exhibits are not directly related to the current case or involve different issues/parties, they are inadmissible or irrelevant to the matter at hand.
- Whether the current suit is an attempt to relitigate
issues already determined in Suit No. HOW/238/18:
Defendants’ position: The Defendants assert that the Plaintiffs are trying to relitigate issues already addressed in the previous suit, particularly the ownership and division of land.
Plaintiffs’ position: The Plaintiffs deny this, stating that the issues in the current suit—focused on trespass by strangers—are distinct from those in the previous suit, which concerned family land partition among kindred members.
The law recognizes a party’s right to file a new suit for trespass or other violations of property rights, even if there is a separate, ongoing dispute concerning the same land. In Owonikoko v. Arowosaye (1997) 10 NWLR (Pt. 523) 61, the court held that a party may bring a suit for trespass while still litigating ownership or partition issues, provided that the defendants in the trespass suit are different from those in the ownership dispute.
The Plaintiffs argue that their suit is for trespass against new Defendants, who are outsiders to the family land dispute. They assert that the ongoing partition case does not prevent them from pursuing a trespass claim against third parties.
The Plaintiffs have the legal right to bring a suit for trespass against the Defendants if they are strangers to the earlier partition case. The ongoing partition dispute does not prevent them from protecting their property rights against alleged trespassers.
Based on the analysis of the issues and relevant judicial authorities, the court is of the view that:
- The current suit is not an abuse of court process, as the parties and issues are distinct from those in the previous suit.
- The Defendants have failed to establish that the two suits involve the same subject matter and parties, as required for a defense of res judicata.
- The Plaintiffs are entitled to bring a separate action for trespass against third-party Defendants, even if there is an ongoing partition suit.
The court therefore dismiss the Defendants’ application to strike out the Plaintiffs’ suit. The Plaintiffs’ action for trespass should proceed to trial on its merits.
I so hold
I.M.Njaka
Judge
3-10-2024
Appearances:
Emeka Nwagwu, SAN with JC Okafor and ED Ibe for the 1st – 2nd Defendants/Applicants
EOU Dike Mrs., with BC Ononogbo for the Plaintiff