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.
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.
Abatement of Action Paras. 1-4
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.
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.
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.
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
“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

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT