IWEANYA & ORS. vs. IGUEGBE & ORS.(2022)LCN/16944(CA)
PRINCIPLE:
“On the 14th day of June, 2011, in the High Court of Imo State, Owerri Judicial Division, the Appellants herein, instituted an action against the 1st of Respondents for the violation of their fundamental human rights. Granting their application, the Court, per Duroha Igwe J, ordered as follows:
- “The arrest and detention of the applicants since the 10-3-2011, till they were granted bail by the Magistrate by the Respondents and/or their agents on grounds of malice and hatred is unlawful, unconstitutional and constitute a violation of the Applicants rights to liberty is unlawful.
- Respondents are to tender a written apology to the applicants for violation of their fundamental rights.
- The sum of N1m being general damages jointly and severally against Respondents for the violation of the applicants’ fundamental rights.
- Respondents, either by themselves, servants, agents or privies are restrained from further violation of the Applicants’ fundamental rights and further arresting or detaining them over the subject matter of this suit”.
Following the execution of the judgment, the 1st set of Respondents filed a Motion on 8/8/2011 before the said Judge, Duroha Igwe J, seeking the following: - An order setting aside the execution of 1/8/2011
- An order compelling the 7th, 8th and 9th Defendants to return the properties upon which execution was levied
Without the determination of this application, the said Respondents filed an Originating Summons on 12/9/2011, dated 6/9/2011 seeking the following reliefs: - A declaration that the execution of judgment levied against the properties of the Claimants by the Defendants on 1/8/2011 is wrongful and improper in law.
- An order of Court setting aside the said wrongful levying of execution by the Defendants.
- An order of Court setting aside the said wrongful levying of execution by the Defendants.
- The sum of Twenty Million Naira (N20m) in damages jointly and severally against the Defendants and in favour of the Claimants.
The lower Court, in its ruling, agreed that the suit before him and the Motion filed before Duroha Igwe J, pending before both Courts and having substantially the same reliefs, constituted an abuse of Court process.
It however held that:
“By discontinuing the matter before the Owerri High Court, the ingredients of vexation, annoyance and irritation caused by the 2nd suit will no longer be present at the hearing and there cannot be any abuse…..I cannot see how this suit will amount to sitting on appeal over the Owerri High Court when there is nothing before that Court now and how the issue of execution of its judgment will amount to sitting on appeal over the Court. The Claimants were within their rights to choose whether to pursue the motion to set execution aside in that Court or to take a separate action like the present one to set aside the execution. In the circumstances, this suit is not an abuse of Court process and the motion to dismiss the suit is hereby dismissed.”
While I agree with the lower Court that where a process has been discontinued before a Court, that party, in appropriate circumstances, can file a similar process before another Court, where however, the discontinuance is speedily done to truncate the objection raised by the opposing party to this abuse, the same cannot be merely waived away as having cured the abuse, I hold. The instant case is thus distinguished from the facts in Yisau v. Wema Bank (2001)11 WRN 93 at 104, Ratio 30-35 per Onalaja, JCA, cited by the Counsel to the 1st set of Respondents.
The abuse, I hold, lies in the manipulation of the processes of the Court by the said Respondents, in order to have their way at all costs.
This Court, per Mukhtar, JCA, (as he then was) in Olawore v. Olanrewaju (1998) 1 NWLR Part 534 Page 436 at 455 Paras. D-E upheld the decision of the trial Judge in the appeal before them, where he held: “Thus, I hold that it is an abuse of process in this case for the plaintiffs to file their notice of discontinuance so that they may have their way in the new suit No. HOY/32/85 proposed”
Not only do I hold it to be an abuse to file two processes seeking substantially the same reliefs in different Courts, whether one is discontinued or not, it is also an abuse of the Court’s process to indulge in forum shopping.
This term refers to the reprehensible practice of choosing the most favourable Court or territorial jurisdiction in which a matter or cause may be entertained or adjudicated upon. This practice has been deprecated severally. See Johnson v. Eze (2021) 2 NWLR Part 1759 Page 90 at 109 Paras. G-H per Shuaibu, JCA; Slok Nigeria Ltd. v. Chief Judge of the Federal High Court (2020) 11 NWLR Part 1735 Page 338 at 376 Paras. G-H per Ige, JCA; Pali v. Abdu (2019) 5 NWLR Part 1665 Page 320 at 336 Para. A per Ejembi Eko, JSC.
Rather than have the Court that delivered judgment in the matter and before whom the Motion to set aside the execution was filed, to adjudicate on same, the 1st set of Respondents, hurried to another Court outside that judicial division to file an entire action, only to hurriedly terminate the application before the initial Court seised with the matter.
In addition to this, is the non-compliance by the said Respondents with Section 51 of the High Court Law of Imo State, which provides as follows:
“Subject to the provisions of this or any other enactments and subject to any rules of Court, all civil and criminal causes or matters and all proceedings in the High Court and all business arising thereat shall so far as is practicable and convenient be tried, heard and disposed by a single Judge, and all proceedings in an action subsequent to the hearing or trial down to and including the final judgment or order shall so far as is practicable and convenient be taken before the Judge before whom the trial or hearing took place.”
An identical provision is Section 60 of the High Court Law of Lagos State, which came up for interpretation before the Supreme Court in the case of International Bank for West Africa Ltd. v. Pavex International Co. (Nig) Ltd. (2000) 7 NWLR Part 663 Page 105.
The lower Court in that appeal had considered a similar situation as the present, where it was a different Judge from the one that delivered the judgment who entertained the motion challenging the writ of execution issued pursuant to the judgment. Declaring the order made by the subsequent Judge null and void, the Court, per Uwaifo, JCA, (as he then was) held that provision to mean that “all proceedings in an action subsequent to the hearing or trial of the action shall be heard by the Judge who determined the action…all business arising thereat in all causes or matters must include the issue of the writ of execution and any application to have it set aside..”
The trial Judge was held to have “no colour of competence and jurisdiction …to have entertained the motion and made any order thereon”
Affirming this decision, the Supreme Court, in the appeal to them, in the lead judgment of Ejiwunmi, JSC, at Pages 126-128 Paras. H-E, interpreted this law thus:
(i) “All causes or matters, be they civil or criminal, shall be tried by a single Judge.
(ii) All proceedings in the High Court and all business arising thereat shall be tried by single Judge.
(iii) All proceedings in an action subsequent to the hearing or trial down to and including the final judgment or order shall be heard by the same judge who heard the case.
The Court thereupon held: “It is also clear that by S.60 of the Act, the jurisdiction of a High Court as analysed above is predicated in each case, upon whether it is practicable and convenient for a single Judge to hear and determine the matter. Similarly, it can be stated that it is only where it is not practicable and convenient that a civil or criminal cause or matter, proceedings, before and subsequent to final judgment, would such matters not be heard by the same Judge… As I have tried to show above, the fact that Adeniji J. was the Judge who determined the earlier suit between the parties is one thing. In order to meet the proviso of Section 60 (supra) so as to excuse the Judge from being assigned to hear the motions in the instant case, it must be shown that it was not convenient and practicable for the Judge to hear the motions. Upon that understanding of the proviso in Section 60 (supra), it is my respectful view that Balogun Ag. CJ. ought to have shown in the record that he had made the necessary enquiries which led him to conclude that the motions could not be assigned to Adeniji J. as he was unavailable to hear them. It is evident that Balogun Ag. CJ did not advert to Section 60 before he assigned the motions to himself, and therefore failed to make the enquiries which he ought to have made before assigning the motions to himself. The Court below surely cannot be faulted for recognising that Balogun Ag. CJ fell into error when he failed to consider the provisions of Section 60 of the High Court Law of Lagos State before assigning the motions to himself.” Underlining Mine
It is thus clear that the Appellants violated Section 51 of the High Court Law of Imo State in discontinuing the Motion filed before Duruoha-Igwe only to file a process seeking the same relief before another Judge of the same State High Court. The lower Court was similarly in error, I hold, to have assumed jurisdiction in the case without enquiries reflected in the records as to why the trial Judge could not entertain the challenge to the execution carried out. The Originating Summons filed subsequently before the lower Court was thus an abuse of the Court’s process. The 1st issue for determination is accordingly resolved in favour of the Appellants.” Per ADEFOPE-OKOJIE, JCA.