Action

• Pages: 15-970

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(3) ACTION.

(1) ABATEMENT OF ACTION.

Can a statute apply retrospectively to abate pending action.

“In the case of O.H.M.B. v. Garba(supra) the Supreme Court concluded that the Decree did not

affect the High Court’s jurisdiction to conclude and decide the cases pending before it when the

Decree was promulgated and came int o force. The Court in the O.H.M.B. v. Garba(supra) affirmed

the Supreme Court’s decision in the case of Are v. A.-G., Western Region(1960) S.C.N.L.R. pg.

224 that “unless it affects purely procedural matters, a statute cannot apply retrospectively except

when it is made to do so by clear and express terms.” Thus the effect of the words of an amending

law or enactment is “in futuro” and therefore it could not by necessary implication have the effect

of putting a stop to proceedings which had already been validly commenced. In that case,

Mohammed, J.S.C. held at pages 553-554, pars. H-B that - “I agree with the submission of the

learned counsel that Decree No. 107 of 1993 which further amended the jurisdiction of the Federal

High Court did not contain any abatement provision. That being so, I am of the opinion that the

argument of the learned counsel that the abatement provision is impliedly repealed is based on

sound reasoning. Decree No. 107 of 1993 was the Constitution (Suspension and Modification)

Decree, 1993. It was enacted with thesole purpose of restoring and suspending of some and

modification of other provisions of the 1979 Constitution. Section 230 of Decree 107 of 1993

provided for detailed jurisdiction of the Federal High Courts. There is no provision for cases which

are pending in the State High Courts to have abated and I agree that it could be implied that the

provision of abatements in Decree 60 of 1991 had been repealed.” – Per Adekeye, J.S.C., in

Goldmark (Nig) Ltd. v. Ibafon Co. Ltd. Suit No. S.C. 421/2001; (2012) 10 N.W.L.R. (Pt. 1308)

291 at 337.

Effect of action that is statute barred.

“The effect of an action that is statute-barred is that the cause of action becomes extinct by

operation of law and can no longer be maintained in the court. When an action is statute-barred,

the plaintiff who might have had a cause of action loses the right to enforce the cause of action by

judicial process because the limitation period had elapsed. See: Hassan v. Aliyu(supra), per

Adekeye, J.S.C. @ 89-90 C. Any action instituted after the expiration of the prescribed period

must be struck out for not being properly instituted before the court. The appellant’s counterclaim

filed on 20th July 2022 more than 42 days after the cause of action arose was rightly struck out by

the lower court. I am not persuaded to interfere with the sound reasoning of that Court. This issue

is accordingly resolved against the appellant.” – PerKekere-Ekun, J.S.C., in Eze. v. Umahi. Suit

No. S.C. CV/1317/2022; (2023) 6 N.W.L.R. (Pt. 1880) 383 at 416.

Instance(s) where a party in a suit may be substituted.

“I have also carefully perused the provision of Order 13, Rule 29 of the High Court of Lagos State

(Civil Procedure) Rules, 2004, and for ease of reference same is reproduced thus:- “No proceedings

shall abate by reason of death or bankruptcy of any of theparties, if the cause of action survives

and shall not become defective by the assignment, creation or devolution of any estate or title

pendents lite, and, whether the cause of action survives or not, there shall be no abatement by

reason of the death ofeither party between the finding on issues of fact and judgment but judgment

may in such case be entered notwithstanding the death.” An action survives the death of the

original defendant in circumstances where the action is not for the performance of personal

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contracts. Thus a party in a suit may be substituted in the instance of death and where the cause of

action survived the party. See Ofordum v. Easy Geo International Ltd.(2019 C.A.) where this

Court held as follows;- “There is no doubt that there are certain instances where a party may be

substituted for another, especially in instance of death, but such a substitution is not automatic,

and would depend on several factors, one of which is the fact that the cause of action must have

survived the party.” TheAppellants did not deny failure to object to the substitution at the trial

Court. Neither has there been any law or judicial precedent establishing any fact that a party cannot

be substituted for another in instances of death in order to survive. In my view, the decision of the

trial Court has not been sufficiently faulted.” – PerTukur, J.C.A., in Adeleye & Anor. v. Oluwole.

Suit No. CA/L/23/2013; (2019) L.P.E.L.R. – 49808 at 10 – 11.

Position of the law where a cause of action is one that survives the party and categories of

action that automatically abates on the death of a party.

“Order 15 Rule 2 of the Court of Appeal Rules recognizes the need to substitute a deceased party

on appeal and it empowers the substitution or addition of a new party for a deceased appellant or

respondent, as the case may be. It must, however, be pointed that not every matter or appeal

survives the death of a party. Matters or appeal dealing with issues which are personal to a

deceased, matters in the nature of a personal action, do not survive the death of the party, and they

usually abate on the death ofthe party. Examples of these are actions to enforce a contract of

personal service, actions for breach of promise to marry or seduction, actions for defamation and

actions for enticements and harbouring – Ojo v. Akinsanoye (2014) L.P.E.L.R. – 22736 (C.A.).

Therefore, the foremost and germane question to resolve on the present application is whether the

action filed by the deceased Appellant in the lower Court, and this appeal emanating therefrom, is

of such a nature that survives the death of the Appellant. It is trite that the question of whether or

not a cause of action survives the death of a party is one of law to be determined by the nature of

the action or the capacity in which the dead party sued or was sued, and it is not dependent on the

say so of a party - The Incorporated Trustees of the Jamat-UI-Muslimeen Council of Lagos v. Oki

(2010) 1 N.W.L.R. (Pt. 1176) 616.” – PerAbiru, J.C.A., in Hadejia v. Ladan & Ors.Suit No.

CA/J/152/2014(R); (2017) L.P.E.L.R. – 43368 at 7 – 9.

Whether misjoinder or non-joinder of parties can defeat an action.

“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and

the court may in every cause or matter, deal with the matter in controversy so far as regards the

rights and interest of the parties actually before. When an action is properly constituted with a

plaintiff with legal capacity to bring the action, a defendant with capacity to defend, and a claim

with cause of action against the defendant, and the action has satisfied all preconditions for

instituting the action, the fact that a necessary party to the action has not been joined, is not fatal

to the action and will not render the action a nullity. An action cannot be defeated on the grounds

of non-joinder or misjoinder. See Per Ikechi Francis Ogbuagu, J.S.C., in Sapo & Anor. v. Sunmonu

(2010) L.P.E.L.R. – 3015 (S.C.) (PP.19 – 22, paras. E-B), (2010) 11 N.W.L.R. (Pt. 1205) 374. See

also General Electric Company v. Akande & Ors.(2011) L.P.E.L.R. – 9356 (S.C.), (2010) 18

N.W.L.R. (Pt. 1225) 596.” – PerAji, J.S.C., in Anozia. v. A.-G. Lagos State.Suit No. S.C.

196/2010; (2023) 2 N.W.L.R. (Pt. 1869) 545 at 556 – 557.

Whether the death of a party during the pendency of an action would automatically abate

the action.

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“I do not agree that it is in all cases that the death of a party will need substitution for the action to

be sustained. The law as clearly brought out by the Respondent is that the death of a party will not

amount to the striking out the case if there areother parties whose presence can sustain the case in

Court.” – PerTobi, J.C.A., In Re: Yindang & Ors. Suit No. CA/J/174/2016; (2021) L.P.E.L.R. –

55149 at 21.

(2) ABUSE OF COURT PROCESS.

Abuse of Court process and duty on Court to prevent.

(1) “The interim order 25/7/2000 is still operative until discharged. This order was not by any

means discharged or terminated before the learned Judge embarked on hearing another ex-parte

application in respect of the same subject-matter between virtually the same parties and ultimately

granted another order of restrain while one was still subsisting and operative between the parties.

It is still the greatest privilege and prerogative of one saddled with the administration of justice

that once an abuse of the process of Court is apparent he should not hesitate to nip it in the bud.

An example of abuse of Court process is for different actions based on the same facts between the

same partiesto be filed in different Courts or even the same Court simultaneously in respect of the

same right and subject-matter. A Court of law will always prevent the improper use of its

machinery. Benaplastic Industries Ltd. v. Vasilyev (1999) 10 N.W.L.R. (Pt. 624) 620; Harrima v.

Harriman(1989) 5 N.W.L.R. (Pt. 119) 6; CBN v. Ahmed(2001) 11 N.W.L.R. (Pt. 724) 369.” –

PerAdekeye, J.C.A., in Ezenwaji v. UNNSuit No. CA/E/119/2001; (2006)3 N.W.L.R. (Pt. 967)

325 at 343.

(2) “In my view the issue of whether a party had abused the process of the Court is a matter of

fact. As between the same parties no man should be vexed twice for the same cause of action by

the improper use of the judicial process. This interferes with the effective and efficient

administration of justice. See Saraki v. Kotoye(1992) 9 N.W.L.R. (Pt.264) p. 156. The motion ex

partefiled before and granted by Ojo, J. cannot be an improper use of the judicial process to the

irritation and annoyance of the appellants who were never put on notice before it was discontinued

by the respondents. As at the time the action at the Federal High Court was filed, the motion on

notice having not been filed, the entire action before Ojo, J. automatically became spent and void.

See Ezeadukwa v. Maduka(1997) 8 N.W.L.R. (Pt.518) p. 635 at p. 670. The action before

Orilonise, J. was first in time and even though pending before the application under review was

filed was between different parties and had a different subject matter and different issues for

determination.”– Per Ogunwumiju, J.C.A., in Gov., Kwara State v. LawalSuit No.

CA/IL/32/2004; (2007) 13 N.W.L.R. (Pt. 1051) 347 at 385.

(3) “The conclusion arrived at by the learned trial Judge is with respect unsupportable. From the

affidavit evidence reproduced above, the detention of the 1st applicant was on the basis of a remand

order issued by a Chief Magistrate of Lagos State. A copyof the warrant was annexed as exhibit

CP6. The 1st applicant and others detained with him had filed suit No: FHC/L/CS/1203/2012 for

the enforcement of their fundamental rights based on the same detention of 9th - 19th October.

The learned trial Judge Abang J. had struck out the suit on the grounds inter aliathat a claim under

the Fundamental Rights provision is inappropriate where the remand is on the basis of an order

from a Chief Magistrate.” – PerIyizoba, J.C.A., in I.G.P. v. UbahSuit No. CA/L/199A/2013;

(2015) 11 N.W.L.R. (Pt. 1471) 405 at 441.

(4) “There can only be an abuse of Court process where the party accused initiated the Court

actions or multiplicity of actions to the annoyance, irritation or detriment of his adversary – See