Practice and Procedure 1

• Pages: 1-918

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Abandonment of case Paras. 1-4

PRACTICE AND PROCEDURE 1

(1) ABANDONMENT OF CASE

1. Effect of raising an issue abandoned during trial on appeal.

“There is no other evidence before the Tribunal showing that the 1st respondent was

not qualified to contest because he attended the University of Calabar or because he

applied to the Nigerian Law School. In the circumstances, the appellant has aban-

doned his paragraph 12 of the petition. I therefore answer the question posed in issue

No. 2 of the 1st respondent’s brief in the negative, that is the appellant cannot start a

fresh case which he abandoned at the Tribunal – See: Ndiwe v. Ibekendu (1998) 7

N.W.L.R. (Pt. 558) 486 at 499, also Koya v. UBA Ltd. (1997) 1 N.W.L.R. (Pt. 481)

251; (1997) 1 S.C.N.J. 1 at 22.” - Per Obadina, J.C.A. in Edet v. Eyo Suit No. CA/

C/EPA/36/99; (1999) 6 N.W.L.R. (Pt. 605) 18 at 30.

(2) ABSENCE OF WITNESS

2. Person bearing onus of explaining absence of witness at trial.

“It needs to be said that where evidence of a witness is needed to prove a fact the

burden is on the person who seeks to prove that fact to account for the absence of

the witness. It is not for the Court to speculate as to the reason for his absence.” -

Per Ayoola, J.S.C. in Okhuarobo v. Aigbe Suit No. S.C. 82/1997; (2002) 9 N.W.L.R.

(Pt. 711) 29 at 84.

(3) ABUSE OF COURT PROCESS

3. Abuse of Court process arising from the filing of notice of cross-appeal

and an application to affirm or vary the judgment on other grounds.

“I am, therefore, satisfied that a respondent’s notice to affirm cannot co-exist with a

notice of Cross-appeal in the same case, and where the two notices so exist as in the

present case, an abuse of the process of the Court has arisen.” - Per Uwais, J.S.C.

in Anyaduba v. N.R.T. Co. Ltd. Suit No. S.C. 103/1988; (1990) 21 N.S.C.C. (Pt. I)

238 at 243; (1990) 1 N.W.L.R. (Pt. 127) 397 at 407.

4. Consequence of abuse of process of Court.

“Ordinarily the consequence of holding that there is an abuse of the process of the

Court is to strike out the offending process. However, in the present case a different

panel of this Court (Obaseki, Uwais, Oputa, Agbaje and Craig, JJ.S.C.) had given the

respondent leave on the 22nd day of May, 1989 to file the notice of Cross appeal. Will

it then be proper for the present panel, as differently constituted, to deny the respon-

dent the right to appeal by striking out its notice of Cross-appeal. I think not. In my

opinion the way out of the predicament, is to give election to the respondent to choose

which of the incompatible processes it would like to retain and proceed with in the

appeal, so that the other process given up by it may be struck out.” - Per Uwais,

J.S.C. in Anyaduba v. N.R.T. Co. Ltd Suit No. S.C. 103/1988; (1990) 21 N.S.C.C.

(Pt. I) 238 at 243; (1990) 1 N.W.L.R. (Pt. 127) 397 at 408.

Paras. 5-9 Vol. 17 Pt. I: PRACTICE AND PROCEDURE 1 2

5. Course open to Court where it makes a finding of abuse of Court process.

“The only option open to a Court where a finding of abuse of process of Court is

made to put an end to litigation. See: Owonikoko v. Arowosaiye (1997) 10 N.W.L.R.

(Pt. 523) 61; Arubo v. Aiyeleru (1993) 3 N.W.L.R. (Pt. 280) 186; Nweke v. Udobi

(2001) 5 N.W.L.R. (Pt. 706) 445.” - Per Bulkachuwa, J.C.A. in Min. for Works v.

Tomas (Nig.) Ltd. Suit No. CA/A/82/2000; (2002) 2 N.W.L.R. (Pt. 752) 740 at 781.

6. Court’s attitude to abuse of its process.

“In an abuse of the Court’s process such as this the order normally made is to stay

the latter suit pending the determination of the earlier suit. See Okorodudu v.

Okoromadu (supra) where the order made was: - “Accordingly, it is ordered as

follows: - “that suit no. W/117/73 in the High Court, Warri, be stayed pending the

determination of suit No. W/8/73.” In our present case, the situation is different. Suit

No. FHC/L/CS/213/95 has been discontinued and stuck out. There was only one

case before the Court below, when it heard the motion. - Per Muhammad, J.C.A. in

The M.V.“S Araz” v. Scheep . Suit No. CA/L/251/95; (1996) 5 N.W.L.R (Pt. 447)

204 at 218.

7. Court’s duty where it raises an issue suo motu.

“The general principle is that where a Court suo motu raises new issues, if it deems

fit to do so, the Court must give the parties the opportunity to address it before a

decision on the issues is taken. Non-observance by the Court of this principle, that is

to say, when the Court, suo motu raises and considers new issues without calling

upon the parties to address it thereon, amounts to a misdirection. However, unless the

misdirection is so grave as to have occasioned substantial miscarriage of justice, an

appeal Court will not ordinarily interfere with the decision of the lower Court.” - Per

Katsina Alu, J.C.A. in Akpunonu v. Bekaert Overseas Suit No. CA/PH/134/92;

(1995) 5 N.W.L.R. (Pt. 393) 42 at 64.

8. Does failure of Court to hear parties before resolving an issue raised suo

motu necessarily connote miscarriage of justice?

“It is pertinent to state that the failure of the Court to give such opportunity to the

parties does not in every case occasion a substantial miscarriage of justice. Each

case depends on its own merit. Therefore it is not sufficient merely to show that the

Court committed an error of law. The appellant must further show that the error of

law in the case in question occasioned a miscarriage of justice. See Imah v. Okogbe

(1963) 9 N.W.L.R. (Pt. 136) 159 at 178.” - Per Katsina Alu, J.C.A. in Akpunonu v.

Bekaert Overseas Suit No. CA/PH/134/92; (1995) 5 N.W.L.R. (Pt. 393) 42 at 64.

9. Effect of bringing interlocutory appeal challenging the jurisdiction of lower

Court when a preliminary objection against jurisdiction is pending before

the lower Court.

“Abuse of process as postulated by Oputa, J.S.C. in the case of Amaefule v. The

State (1988) 1 N.S.C.C. (Vo1. 19) 669 at 684 LL.35-50: - “is a term generally applied

3 Abuse of court process Paras. 9,10

to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppres-

sive. Abuse of process can also mean abuse of legal procedure or improper use of

process”. None of the charges adverted to in the above quote as it were can be

applied to any of the circumstance in this matter.

Clearly the preliminary objection is challenging the jurisdiction of the Court

below over the subject matter on the ground that it is within the admiralty jurisdiction

of the Federal High Court. In my view it should, not deter the appellant, notwithstand-

ing this Court’s deprecation against interlocutory appeals (as borne out in the unre-

ported judgment in the appeal No. CA/L/360/99; N.N.P.C. v. Edobor & Ors. deliv-

ered on 12/12/2000) from challenging on appeal the instant interim order of injunc-

tion, an appealable decision within the context of S. 318 (1) of the 1999 Constitution.

The dissimilarity between the cited unreported case and this case is obvious in that

the instant interlocutory appeal raises issue of jurisdiction capable of finally determin-

ing the matter; this was not the case in the said cited unreported judgment. Surely,

none of the steps taken by the appellant in the Court below in this matter can re-

motely be labeled an abuse of process.” - Per Chukwuma Eneh, J.C.A. in Brawal v.

E.C.S.S. Ltd. Suit No. CA/L/73M/96; (2001) 19 W.R.N. 169 at 181-182.

10. Effect of Supreme Court’s decision on Okorodudu v. Okoromadu (1977)

3 S.C. 21 regarding the abuse of Court process in filing a notice to withdraw

an interlocutory appeal while at the same time bringing an application to

appeal against the substantive judgment.

“The reliance which learned counsel placed on the case of Okorodudu v. Okoromadu

(supra) to submit that it is an abuse of Court process to file notice to withdraw the

interlocutory appeal while at the same time bringing an application to appeal against

the substantive judgment is not altogether correct. There is a clear distinction be-

tween what happened in Okorodudu v. Okoromadu and the present case. In

Okorodudu v. Okoromadu (supra) the plaintiffs after making several unsuccessful

attempts to amend their pleadings filed a new suit against the defendants on the same

subject matter and then filed a notice of discontinuance of the first suit under Order

28 rule 1(1) of the High Court Rules, 1958, Western Region of Nigeria. The notice

was filed after the date fixed for the hearing of the first suit. The trial Judge treated

the notice as if it had been an application made under rule 1(2) of the said order. He

then considered the pleadings of the plaintiffs and found the plaintiffs could not suc-

ceed in any of the claims. In consequence thereof he dismissed the plaintiffs claims.

In an appeal against the order of dismissal it was held that the notice of

discontinuance having been filed after the date fixed for hearing of the first case, was

invalid and the proper order to make was to strike out the notice and call upon the

plaintiffs to proceed with the hearing of their case. It was held further that it is an

abuse of judicial process of the Court to file the new suit against the dependants on

the same subject matter as the first suit which was then pending in the Court.” - Per

Akaahs, J.C.A. in Abumere v. Abumere Suit No. CA/B/173/2000; (2002) 10 N.W.L.R.

(Pt. 775) 441 at 453.