Action

• Pages: 1-426

ACTION

(1) ABATEMENT OF ACTION

1. Abatement of action.

“The proceedings did not seek to challenge any act or thing done or purported to be

done, by any person under Decree No. 17 of 1984, it seems to me that S. 3(3) does

not apply here. The challenge was against the act or thing done in pursuance of

enabling powers conferred on the Visitor by the University of Nigeria Act No. 1 of

1978, simplicter.” - Per Macaulay, J.C.A. in Okara v. Ndili Suit No. CA/E/87/88;

(1989) 4 N.W.L.R. (Pt. 118) 700 at 720.

2. Difference between abatement of action and ouster of jurisdiction.

“Abatement of an action is, in my view, a different thing from ouster of jurisdiction. It

concedes that before the abatement provision of a legislation comes into operation,

the Court has jurisdiction to entertain the proceedings hitherto pending, but as soon as

the abatement provision comes into operation, the pending proceedings to that extent

is vacated and removed from the record of the Court.” - Per Macaulay J.C.A. in

Okara v. Ndili Suit No. CA/E/87/88; (1989) 4 N.W.L.R. (Pt. 118) 700 at 720.

(2) ABUSE OF COURT PROCESS

3. Action not properly instituted before the Court can constitute abuse of

Court process.

“Where a suit has been taken without complying with the prescribed essential pre-

liminary requirements to the institution of the action, the suit cannot be said to be

properly before the Court. It is when a suit is in the first place properly before the

Court, that the question can arise whether or not the suit is taken in abuse of process

of the Court.” - Per Ayoola, J.C.A. in Ojabo v. Inland Bank (Nig.) Plc. Suit No.

CA/L/26/96; (1998) 11 N.W.L.R. (Pt. 574) 433 at 439.

4. When abuse of Court process may occur.

“An abuse of process of the Court may occur, when a party improperly uses judicial

process to the harassment, irritation and annoyance of his opponent, and to interfere

with the administration of justice. A clear instance is where two similar processes are

used against the same party in the respect of the exercise of the same right and

subject-matter; see Okafor v. Anambra State (1991) 6 N.W.L.R. (Pt. 200) 659 at

618; Saraki v. Kotoye (1992) 9 N.W.L.R. (Pt. 264) 156 at 188-189.” - Per Uwaifo,

J.C.A. in Pavex Int. Co. Ltd. v. I.B.W.A. Suit No. CA/L/242/91; (1994) 5 N.W.L.R.

(Pt. 346) 685 at 699.

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Abatement of Action Paras. 1-4

(3) ABUSE OF JUDICIAL PROCESS

5. Abuse of the judicial process.

“There is no doubt that the abuse of judicial process is said to exist when a proceed-

ing is wanting in bona fides, or is frivolous, or vexatious or oppressive or amounts to

abuse of legal procedure or improper legal process. See: Amaefule v. The State

(1988) 2 N.W.L.R. (Pt. 75) at 177 - per Oputa, J.S.C. It is clear from the facts

placed before the trial Court that the 4th respondent was compelled to file the motion

- suit No. A/M/11/95, as a result of fresh development that came up after he had filed

his earlier action - suit No. A/53/95. The new development was the sudden publica-

tion of the four legal notices. The procedure laid down for the application he was to

make, as already shown above, is very peculiar. It is as setout in Order 43 of the High

Court Civil Procedure Rules 1988. It was therefore not possible under the applicable

rules of Court for applicant to merely apply to amend his existing claim before the

Court or by merely filing the motion under the suit. I therefore hold that the action

taken by the 4th respondent in instituting the second action cannot amount to an

abuse of Court process.” - Per Achike, J.C.A. in Nwoboshi v. State Suit No. CA/B/

121/96; (1998) 10 N.W.L.R. (Pt. 568) 131 at 154.

(4) ACTING IN HASTE

6. Is haste an actionable wrong?

“In any case it has not been shown that the acting in haste is an actionable wrong

under the law.” - Per Edozie, J.C.A. in Inyang v. Ebong Suit No. CA/C/2/2000;

CA/C/52/2000; (2002) 2 N.W.L.R. (Pt. 751) 284 at 335.

(5) ACTION AGAINST BAILFF OF THE COURT

7. When action can be taken against a Court Sheriff.

“Section 42 of the Sheriffs and Civil Process Act, Cap. 407 of the laws of the Fed-

eration, 1990 seems to protect the bailiff who acts under a writ of execution unless

the bailiff refuses or neglects to comply with the conditions provided under Section

42 of the Act. Section 42 of the Sheriffs and Civil Process Act, provides as follows:

- “No action shall be commenced against any bailiff for anything done in obedience to

any process issued by a Court, unless: - (a) A demand for inspection of the process

and for a copy thereof is made or left at the office of the bailiff by the party intending

to bring the action or his solicitor or agent, in writing signed by the person making the

demand; and (b) The bailiff refuses or neglects to comply with the demand within six

days after it is made.” There is no allegation of mala fide against any of the bailiffs

that carried out the attachment; there is no evidence that a demand for inspection of

the process and for a copy thereof was ever made or left at the office of the bailiffs

by the appellant or his solicitor or agent in writing and that the bailiffs refused or

Paras. 5-7 Vol. 1: ACTION 2

neglected to comply with the demand.” - Per Omage, J.C.A. in Maigoro v. Bashir

Suit No. CA/K/172/98; (2000) 11 N.W.L.R. (Pt. 679) 453 at 476.

(6) ACTION AGAINST PUBLIC OFFICERS

8. Action against an office.

“An action against an office is an action against the holder for the time being of that

office who may not necessarily be the alleged wrongdoer. Section 2(a) seeks to

protect the alleged wrongdoer and that is why it is only that individual alleged wrong-

doer that can take advantage of the law.” - Per Ogundare, J.C.A. in Alapiki v. Gov.

of Rivers State Suit No. CA/E/274/87; (1991) 8 N.W.L.R. (Pt. 211) 575 at 599.

9. Condition precedent to commencing action against the Nigerian Railway

Corporation.

“I am of the view that whatever form the Court process takes, once there is a claim

for remedy against the corporation by an applicant who complains that his right has

been invaded or violated, the applicant must seek for such remedy within the purview

of Section 83(2) of the Act. The appellant admitted that three months notice was not

given to the Corporation, consequently the application was incompetent and invalid.”

- Per Kolawole, J.C.A in Nig. Cement Co. Ltd. v. N.R.C. Suit No. CA/E/153/88;

(1992) 1 N.W.L.R. (Pt. 220) 747 at 761.

10. Procedure for instituting action against Anambra State or its public of-

ficer. “The State Proceedings Law, Cap. 131 of the Anambra State laws, allows an

action to be instituted against the State or a Public officer defined in Section 2 of the

law as an officer engaged in the service of the State in a civil capacity subject to

certain conditions. Action against the State is, by virtue of Section 6 (b) of the law, to

be instituted in the name of the State Attorney-General the capacity in which the 1st

respondent was sued by the appellants while Section 10 enjoins, that such action

must be subject to the provisions of the law and in accordance with the rules of the

Court before which the action is instituted.” - Per Olagunju, J.C.A. in Okafor v. A.-

G. Anambra State Suit No. CA/E/3/99; (2000) 11 N.W.L.R. (Pt. 679) 479 at 496.

11. Relevant considerations where protection is sought under Public Offic-

ers Protection Law.

“Now, I have no doubt in my mind that on the facts of this case, both the trial Court

and the Court of Appeal were in error when they concluded that the conduct of the

appellant was such that he should be allowed the protection of Section 2 of the Public

Officers Protection Law. It is clear, on the facts that at all material time the appellant

was acting in pursuance of his public duty as a teacher exercising disciplinary control

over his pupils. The fact that there was or might be some default or negligence on his

3 Action against baliff of the Court Paras. 7-11