Court in Election Petition

• Pages: 524-730

9.

COURT IN ELECTION PETITION

(86) ABUSE OF COURT PROCESS

959. Abuse of Court process.

(1) “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. Aiyeleri (1993) 3

N.W.L.R. (Pt.280) 126 at 142 and 146.” - Per Muhammad, J.C.A. in Expo Ltd. v.

Pafab Enter. Ltd. Suit No. CA/K/78/95; (1999) 2 N.W.L.R. (Pt. 591) 449 at 462.

(2) “Learned Senior Advocate of Nigeria on behalf of the respondent herein submitted

that the position in the appeal at hand is quite distinguishable from the two cases

cited by the appellant i.e. K.S.U.D.B. v. Fanz Construction Ltd. (supra) and

Alhaji Albishir Ltd. v. Bayero University Kano (supra). In that these are cases

where both applications came before the same Judge in the same action unlike the

appeal at hand where an application to enforce the award was before Saleh C.J. in

the High Court F.C.T. Abuja while the application to set aside that award was filed

not before Saleh C.J. at Abuja High Court but filed before a Lagos High Court

before Justice Segun. Without much ado. I think it is crystal clear that it is wrong for

a counsel to file an application to enforce an award before Abuja High Court and

another counsel to deliberately decide to file an application to set aside the same

award in a Lagos High Court. It is not neat at all. This is clearly a multiplicity of

actions on the same subject matter between the same parties in different Courts

which is in law an abuse of process and I so hold. This is exactly what Karibi-

Whyte, J.S.C. frowns at in the case of Saraki v. Kotoye (1992) 9 N.W.L.R. (Pt.

264) 156 at 188 where he states thus: - “It is recognized that the abuse of the

process may lie in both a proper or improper use of the judicial process in litigation.

But the employment of judicial process is only regarded generally as an abuse when

a party improperly uses the issue of the judicial process to the irritation and annoyance

of his opponent, and the efficient and effective administration of justice. This will

arise in instituting a multiplicity of actions on the same subject matter against the

same opponent on the same issues.” My Lord Karibi-Whyte, J.S.C. has said it all in

the above exposition of the law. What the law seeks to prevent is the multiplicity of

actions between the same parties in a most disturbing manner. It was said somewhere

that…. “Thus the multiplicity of actions on the same matter between the same

parties even where there exists a right to bring the action is regarded as an abuse.

The abuse lies in the multiplicity and manner of the exercise of the right, rather than

the exercise of the right per se. The abuse consists of the intention, purpose and aim

of the person exercising the right to harass, irritate and annoy the adversary; and

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Para. 959

interfere with the administration of justice; such as instituting actions between the

same parties simultaneously in different Courts, even though on different grounds.”

…..See: Okorodudu v. Okoromadu (1977) 3 S.C. 21 and Oyebola v. Eso West

African Inc. (1966) 1 All N.L.R. 170.” - Per Oduyemi, J.C.A. in Shell Trustees

(Nig.) Ltd. v. Imani & Sons Ltd Suit No. CA/A/17/99; (2000) 6 N.W.L.R. (Pt.

662) 639 at 672.

(3) “The conduct of the defendants in appealing against the default judgment and,

without first withdrawing that appeal, praying at the same time the trial Court to set

aside the default judgment amounts to an abuse of the Court’s process and the trial

Court in such a situation was under a duty to interfere to stop an abuse of its process.

see Okorodudu v. Okoromadu (1977) 3 S.C. 21 “ - Per Ogundare, J.S.C. in

Mohammed v. Husseini Suit No. SC 233/1994; (1998) 14 N.W.L.R. (Pt. 583) 108

at 160.

(4) “It is also equally important to note that all of the writ, the claim and the affidavit

in support of the claim (see pages 1 9 of the record of proceedings) were all dated

the 9th day of November, 1992, and filed on the same date. The motion (ex parte)

for an order of substituted service and the affidavit thereto are also dated and filed

on the same date. To this extent the averment in the affidavit, in support of the ex

parte motion for substituted service which says that several attempts were made to

serve the defendants but were unsuccessful is apparently not true especially because

the writ itself which was issued by the Court (at page 8) was filed on the same date

(i.e. 9/11/92). This as far as the suit between the plaintiff/respondent and the

defendants was concerned at the trial lower Court it has impossible for the plaintiff/

respondent to claim as he did in his affidavits of 9/1/92 (see p. 11 of record) that he

had made several unsuccessful attempts to serve on the defendants the writ and the

claim (which were also filed on the same date 9/11/92). Under normal circumstances

a period of time (reasonable time) should have elapsed between the issuance of the

writ by the Court and the application for substituted service. In other words, they

cannot take place on the same date (as it the present case). The fact that they both

took place on the same date in this case shows that the plaintiff/respondent’s counsel

wanted to manipulate and take advantage of the lower Court to achieve a purpose

which he would, under normal practice circumstances, not be entitled to and this to

my mind is the type of abuse of our judicial practice or process which ought to be

disallowed rather than encouraged by tie Courts. But the trial lower Court in this

case went ahead despite this apparent vice and granted the application for substituted

service against the defendants based on the averment of the plaintiff/respondent on

what happened before the case eras filed This in my view is a serious error. It is trite

that rules of Court must be complied with and a party who applies for exercise of

discretion of the Court must supply the necessary particulars to justify such an exercise

of discretion. See: Williams v. Hope Rising Voluntary Funds Society (1982) 2

526

S.C.145. I am consequently of the humble view that the order substituted service in

this cases should not have been made and since it was made contrary to the principles

of the law and practice and was therefore in error, it must be set aside.” - Per

Adamu, J.C.A. in Labara v. Okoye Suit No. CA/E/36/94; (1995) 4 N.W.L.R. (Pt.

389) 303 at 320-321.

(5) “The further submission that different actions between the same parties can be

filed in different Courts simultaneously so long as “the grounds” are different is even

more misconceived. In the first place, this will at best, even if it were legally permissible,

be an abuse of the process of the Court. On the other hand it can very properly be

regarded as “a fishing expedition” by any party who files two of such actions, on the

ground that he does not seem to know what set of facts he really wishes to reply on

to succeed. Further, it is all best a hypothetical proposition because all the set of

facts that can be canvassed in the different Courts can be relied on in the same

action in one single Court. Finally, it is the type of situation in which Section 9(1) is

applicable to stay of all other but one of the actions. In my view therefore, there

cannot co-exist at one and the same time two or more actions for dissolution of

marriage between the same parties in respect of the same marriage in different

Courts in this country. In the instant case, the existence of a pending appeal in the

Court of Appeal in respect of the same marriage between the present parties is

prima facie a ground for staying proceedings of a subsequent petition for dissolution

of the same marriage in the High Court of Bendel State, Warri Division, because

there are two separate matrimonial causes pending between the two parties.” - Per

Omo, J.C.A. in Harriman v. Harriman Suit No. CA/B/159/87; (1989) 5 N.W.L.R.

(Pt. 119) 6 at 16.

(6) “A careful perusal of the earlier consolidated suits Nos. C/149/86 and C/41/87 on

the one hand and the later suit No. C/321/94, shows clearly that the parties, subject

matter and issues are not the same. The earlier consolidated suits were between the

respondent herein as plaintiff and the Administrator General, the appellant herein

and one Bassey Offiong (deceased) as defendants and the claim was for a declaration

that the plaintiff is entitled to the administrator of the estate of the deceased and an

injunction restraining the defendants from meddling in the said estate. In the present

suit No. C/321/94 giving rise to the present appeal, the parties are the respondent as

plaintiff and the appellant as defendant and the claim are, inter alia, the cancellation

of the letters of administration granted to the appellant and a declaration of joint

ownership of the properties in dispute by the surviving spouse (respondent) and her

deceased husband. It is therefore, manifest that the earlier suit and the later on were

not instituted against the same opponents nor did they involve the same issues. It is

also evident that the respondent instituted the later suit after the Administrator General

had renounced the letters of administration and the grant of same vide Exhibit A to

the appellant. It was to challenge that grant of letter of administration to the appellant

VOL. 2 PT. I COURT IN ELECTION PETITION