IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON FRIDAY, THE 12TH DAY OF NOVEMBER, 2021
BEFORE THEIR LORDSHIPS:
OBIETONBARA O. DANIEL-KALIO JUSTICE, COURT OF APPEAL
ONYEKACHI AJA OTISI JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO. CA/L/1222/2015
BETWEEN:
1. MR.THEOPHILUS OYAFUNKE
2. CHIEF TAIWO OYAFUNKE
(For themselves and on behalf of The Oyafunke family)
3. ALHAJI ADIO SHITTU
4. MR. OLUSEGUN BUSARI
5. MR. GANIYU TIJANI
(For himself and on behalf of The Ilari-Ogun family)
6. PA SULE KAFARU
(For themselves and on behalf of The Kafaru family)
7. MR. SAFRANI LASIS
8. MR. SULE GAFAR
9. MR. BASHIRU OWUYE
10. MR. LASISI OLOOTO
11. MR. MUYIDEEN TIJANI
12 MR. SHAKIRU LAWAL APPELLANTS
13. MR. SAHEED ALIMI
(For themselves and on behalf of The Alimi family)
14. MR. MUSIBAU ODUNTAN
15. MADAM RALIAT ODUNTAN
(For themselves and on behalf of The Oduntan family)
16. MR. LASAMI AGBAJE
17. MR. TAIWO AGBAJE
(For themselves and on behalf of The Alagbayimika Descendants
18. CAPTAIN GOC OGUH
AND
1. ALHAJI SIKIRU YUSUF
2. CHIEF SURAJUDEEN BELLO
3. MR. OLAYINKA SANYAOLU
4. MR. MUYIDEEN AGUNREGE RESPONDENTS
(For themselves and on behalf of the Orudu family of Igando-Orudu)
5. MERIDIAN PROPERTY LTD
6. MR. ADEDEJI OBISANYA
7. PASTOR MATHEW ASHIMOLOWO
8. LAND USE AND ALLOCATION COMMITTEE, LAGOS STATE
9. ATTORNEY GENERAL AND COMMISSIONER FOR
JUSTICE LAGOS STATE
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
At the High Court of Lagos State, Epe Division, the 1st - 4th Respondents, as Claimants, took out a Writ of Summons against the Appellants and the 5th - 9th Respondents as Defendants, wherein they claimed reliefs as follows:
1. A declaration that all that parcel of land contained in Survey Plan No. ASC/LA/732/92 and dated the 10th day of Nov 1992, known as Igando Orudu comprising of Ayeteju, Igando, Alakun, Ofiran and Oke Olokun belong to the Orudu family from time immemorial and they are the ones entitled to the statutory right of occupancy in and over the land.
2. A declaration that the purported alienation of the various portion of the Orudu family land to wit:
i. The assignment of 9.636 hectares by the Ilari Ogun family of the 3rd - 6th defendants:
ii. The assignment of 6 acres by the kafaru family of the 6th defendant.
iii. The memorandum of sale of 3 acres by the Alimi family of the 9th - 14th defendants;
iv. The assignment of 8 acres by the Oduntan family of the 14th and 15th defendants to the 18th defendant is null and void.
3. A declaration that the acts of the 1st - 21st defendant (sic) by entering upon the land of the claimants and dealing in same by way of sales and assignment is an act of trespass.
4. A declaration that the 20th defendant not being a solicitor appointed by the Orudu family cannot lawfully deal in Orudu family land at Igando Orudu and cannot deal with the 22nd & 23rd defendants on behalf of the Orudu family of Igando Orudu.
5. A declaration that all acts done or purportedly done by the 20th defendant especially processing of excision and or certificates of Occupancy at the office of the 22n d& 23rd defendants in and over any portion of Orudu family land at Igando, Ayeteru, Ofiran, Oke Okun and Alakun is null and void.
6. The sum of N10,000.000.00 against the 1st - 21st defendants jointly and severally for the act of trespass committed on the claimants’ land described above.
7. An order of perpetual injunction restraining the 1st - 21st defendants from further acts of trespass on the Orudu family land.
8. An order of injunction restraining the 22nd and 23rd defendants from granting any excision to the 1st - 21st defendant (sic) without the consent of the claimant.”
Before the commencement of trial in the suit, the Claimants/1st - 4th Respondents and the 5th - 9th Respondents filed Terms of Settlement. When the matter came up on 20th October, 2015, learned counsel for parties to the Terms of Settlement applied to have same entered as consent Judgement. Both counsel for the two sets of Defendants, J. O. Oriloye and M.O.A. Olawepo, complained that they were not served with the Terms of Settlement. The lower court ignored their complaint and protestations and entered judgment as per the Terms of Settlement. Aggrieved with that decision, the Appellants have now appealed to this court on 4 grounds via a Notice of Appeal dated and filed on 30th October, 2015. The Grounds of Appeal, without the particulars, are reproduced here below:
GROUND 1
The learned trial judge erred in law when he allowed and granted the adoption and subsequently entered the term of settlement dated August 24, 2015 between the Claimants/Respondents and the 18th,20th and 21st
Defendants/Respondents as the judgement of the court wherein the court held as follows” the terms of settlement dated 24th August 2015 is hereby adopted as judgment between the claimants, 18th, 20th and 21st defendants” when the appellants herein were never served the terms of settlement.
GROUND 2
The learned trial judge erred in law when he adopted and entered judgment in respect of the Terms of Settlement dated August 24, 2015 to overreach the 1st 2nd and 19th defendants/Appellants in Suit No. LD/160/2013 pending before the High Court of Lagos State, Coram: Olokoba J.
GROUND 3
The trial judge erred in law when he entered judgment as per the Terms of Settlement dated August 24, 2015 despite the pendency of the issue of jurisdiction that has been raised in the Statement of Defendant dated September 16, 2015 which has not been resolved.
GROUND 4
The learned trial Judge erred in law when he assumed jurisdiction over the suit when the 1st ,6th 14th, 15th and 19th defendants/appellants have not been duly served with the Originating process.
The Appellants’ Brief of Argument was filed on 31/03/2016 but deemed properly filed and served on 27/04/2017. The 1st-4thRespondents filed their Brief of Argument on 09/02/2018 but deemed on 17/09/2019 while the Brief of the 5tth -7thRespondents and that of the 8th&9thRespondents were filed on 26/02/2016 and 24/97/2020 respectively. The Brief of the 5th – 7thRespondents was deemed properly filed on 17/09/2019.
Appellants filed Reply Briefs to all the Briefs of the three set of Respondents. Learned counsel for the parties adopted their respective Briefs and Replies when the appeal came up for hearing on 28th September, 2021.
The Appellants formulated three issues in their Brief of Argument settled by J.O. Oriloye, Esq., led by Chief Adeniyi Akintola, SAN. The issues are-
In the Brief of Argument of the 1st – 4thRespondents settled by Lanre Ogunlesi, SAN, three issues were formulated for determination. Adedeji Obisanya Esq also formulated three issues in the 5th – 7thRespondents’ Brief of Argument settled by him. Both the 1st-4thRespondents and the 5th-7thRespondents adopted the first issue formulated by the Appellants as their respective issue 1 for determination. The other two issues formulated by this set of Respondents are as follows:
For the 1st - 4thRespondents, issues 2 and 3 formulated on their behalf reads:
ISSUE 2
Is the Terms of Settlement dated 24th August, 2015 entered as the Judgment of the Court between the 1st - 4th and 5th - 7th Respondents an abuse of the process of the court in view of the pendency of Suit No: LD/160/13 between the 5th - 7th Respondents and the Appellants.
ISSUE 3
Whether raising an issue of jurisdiction simpliciter in the pleadings robs the lower court of jurisdiction in this matter to enter the Terms of Settlement executed by the 1st - 7th Respondents as the Judgement of the Court between the said parties.
Issues 2 and 3 formulated by the 5th – 7th Respondents are couched thus:
ISSSUE 2
Whether the Terms of settlement entered as judgment of court between the 1st- 4th Respondents and the 5th- 7th Respondents in Suit No. LD/368LM/2015 could be said to be an abuse of court process in the light of suit No. LD/160/2013, pending before the same Division of the High Court of Lagos State?
ISSSUE 3
Whether by the pleadings as presently constituted before the trial Court in Suit No. LD/368LM/2015, the trial court could be said to lack jurisdiction to entertain this Suit when she entered the Terms of settlement as judgment of the court between the 1st - 4th Respondents and the 5th -7th Respondents?
On his part, Adekunle Laditan Esq, forwarded a lone issue on behalf of the 8th & 9thRespondents for the determination of this court, in these words:
“Whether or not the Appellants Notice of Appeal and Briefs of Arguments seek any prayers and reliefs against the 8th - 9th Respondents on the ground that the 8th- 9th Respondents are not privy and signatories to the consent judgment as per the Terms of Settlement executed between the Claimants now sued as the 1st - 4thRespondents and the 18th, 20th and 21st Defendants at the Lower court respectively.”
After a careful perusal of the issues formulated by the parties, I find that the issues formulated by the 1st - 4th Respondents and those formulated by the 5th - 7th Respondents are substantially identical to the three issues formulated by the Appellants, though couched in different words. In the circumstance, I will adopt the three issues formulated by the Appellants and the lone issue formulated by the 8th & 9th Respondents in the determination of this appeal.
ISSUE 1
“Whether non-service of terms of settlement dated August 24th 2015 on the Appellants does not constitute a breach of the Appellants’ right to fair hearing as provided for in section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) thereby depriving the trial court of the requite Jurisdiction to entertain the said Terms of Settlement (Ground 1).”
Learned counsel for the Appellant submitted that in view of the non-service of the Terms Settlement, which is evident on the Record of the lower court, the Appellants’ right to fair hearing has been breached when the court proceeded to entertain the Terms of Settlement and entered judgment on same. He argued that the non-service of the Terms of Settlement on the Appellants has divested the lower court of jurisdiction of entertain same, as the non-service is a fundamental omission. Learned counsel cited and relied on section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and the judicial authorities of Miden system Ltd vs. Effiong (2011) 2 NWLR (Pt.1231) 354. He attacked the finding of the trial court at page 546 of the Record wherein the court stated that the 1st and 19th Defendants would not be affected by the terms of settlement as amounting to descending into the arena of litigation. Other cases cited are U.B.A. & Anor vs. Ugoenyi & Anor (2011) LPELR 5065 (CA); Tano vs. A.G. Bendel State (1988) 2 NWLR(Pt.75) 132; Uma vs. Effiom (2013) LPELR -21407 (CA). Learned counsel for the Appellants referred to a paragraph of the Terms of Settlement where the 19th Defendant, now 18th Appellant, was alleged to have invaded the land and demolished all the construction work done by the 18th Defendant and submitted that the said allegation was neither contained in the claimants’ claim nor was the said Captain G.O.C. Oguh, the 19th Defendant, served with the Terms of Settlement for his response to the allegation against him. It is counsel’s submission that the implication of the judgment on the Terms of Settlement is that the 19th Defendant was adjudged a convict without being afforded a fair hearing. The court is urged to resolve this issue in favour of the Appellants.
On behalf of the 1st -4th Respondents, Lanre Ogunlesi, SAN, submitted on this issue that the breach of fair hearing is not to be taken in vacuo but whether the right of the party has been affected by the complaint. He submitted that every complaint of breach of fair hearing must be examined within its surrounding circumstances and not be determined on the basis of general principle of law as the Appellants want this court to do. He cited Pam vs. Mohammed (2008) 16 NWLR (Pt.1112) 1 @ 48; Favour Electronic Nigeria Ltd vs. Abdulwasiu Dan Zaria (2014) LPELR-24306 (CA). It is argued that a thorough reading of the Terms of Settlement will reveal that the rights of the Appellants was in no way affected as to affect the jurisdiction of the lower court. Learned senior counsel contended that not only that the Terms of Settlement is not an originating process, it concerns only the 1st - 4th and 5th - 7th Defendants, and also that there is no allegation of crime against Captain G.O.C Oguh. He submitted that the Terms of Settlement only binds parties to it and not the Appellants, and to buttress this argument, the court is referred to the Ruling of the court at page 546 lines 26-29 where judgment was entered only between the Claimants and 18th, 20th and 21st Defendants. Learned senior counsel urged the court to dismiss the appeal on this issue considering that the Appellants were not prejudiced by the non-service of the Terms of Settlement before it was pronounced upon by the lower court.
On behalf of the 5th - 7th Respondents, Adedeji Obisanya Esq contended that fair hearing as guaranteed by section 36 of the constitution means hearing conducted according to all the legal rules formulated to ensure that justice is done to the parties within a reasonable time. It is Mr. Obisanya’s argument that counsel for the Appellants refused to accept service of the Terms of Settlement after confirming that he was aware that the Terms of Settlement was in the file of the court. He argued that not being an originating process, non-service of the Terms of Settlement will not rob the lower court of its jurisdiction to entertain same. That to affect the jurisdiction of the court, the process not served must go to the root of the case, unlike the Terms of Settlement.
ISSUE 2
Whether the entire suit No. LD/368LM/2015 does not constitute an abuse of court process as per the Term of Settlement entered as the judgment of court in the light of Suit No.LD/160/2013 pending before the same Division of High Court of Lagos State (coram Olokoba J.) which borders on the same subject matter. (Ground 2).
Learned counsel for the Appellants commences his address on this issue with the definition of the term ‘abuse of court process’ as stated in the cases of Blue-Chip Communications Company vs. Nigeria Communications Commission (2008) LPELR-3882 (CA); Ogboru vs. Uduagahan (2013) LPELR-20805 (SC) and Amaefule vs. State (1988) 4 SC.1. It is submitted that the Terms of Settlement which was made the judgment of the lower court was the subject matter of the suit No. LD/160/2013 pending before Okoloba, J, of the Lagos State High Court not wherein, Meridian Properties Limited, the 5th Respondent herein sued the 18th, 2nd, 3rd, 5th, 6th 10th and 11th Appellants claiming, among other reliefs, declaration of ownership to a parcel of land measuring 26.486 Hectares situate at Ofiran Village, Ibeju-Lekki Local Government Area of Lagos State. Learned counsel submitted that the reliefs claimed by the 1st -4th Respondents in their claim before the lower court in the instant case No. LD/368/LM/2015 bears the same resemblance with the reliefs sought by the 5th -7th Respondents in suit No. LD/160/2013, thereby constituting an abuse of court process. He cited and relied on Okorodudu vs. Okoromadu (1977) 3 SC. 21; Okafor vs. A.G. Anambra State (1991) 6 NWLR (Pt.200) 659 and A.C.B. Plc vs. Nwaigwe (2011) 7 NWLR (PT.1246) 380. Learned counsel contended that the Respondents were intending to misuse the Terms of Settlement to the annoyance of the Appellants by overreaching them in suit No. LD/160/2013 which was filed much earlier than the one subject of this appeal. He submitted that though the subject matter of this appeal is the Terms of Settlement wrongly entered as the judgment of the lower court, this court can invoke section 15 of the Court of Appeal Act to inquire whether or not the entire suit does not constitute an abuse of court process in that suit No. LD/160/2013 was already pending before suit No. LD/368LM/2015 was filed, and both of them bordering on the same subject matter. Another specie of abuse pointed out by the Appellants is that the Terms of Settlement itself constitutes a flagrant violation of a court order for maintenance of status quo by parties to suit No. LD/160/2013 made by Justice Atinuke Ipaye (Mrs.) on 3rd July, 2013 which concerns the subject matter of the Terms of Settlement. This court is urged, on the authority of Dingyadi & Ors vs. INEC & Ors (2) (2010) 18 NWLR (Pt. 1224) 154 SC, to dismiss the entre suit No. LD/368LM/2015 for being an abuse of the process of court and to resolve issue 2 in favour of the Appellants.
On behalf of the 1st -4th Respondents, learned senior counsel drew the attention of this court to ingredient of abuse of court process as enunciated in the case of Saraki vs. Kotoye (1992) 9 NWLR (pt.264) 156 @ 188-189. He submitted that it is crucial that for there to be an abuse of court process, the action must be between the same parties and over the same subject matter. Mr. Ogunlesi, SAN, contended that while suit No. LD/160/2013 is between Meridian Properties Limited vs. Captain G.O.C Oguh & Ors, suit No. LD/368LM/2015 is between Alhaji Sikiru Yusuf & Ors (1st - 4th Respondents) vs. Mr. Theophilus Oyafunke & Ors, thus, the parties and the reliefs in the two suits are not the same. On the Appellants’ plea for invocation of section 15 of the Court of Appeal Act, the 1st - 4th Respondents argued that conditions for the application of the section have not been fulfilled, in that the order of Justice Ipaye for maintenance of status quo is not in the Record of Appeal and therefore not before this court. It is further argued that even if the order is before this court, it binds only parties to suit No. LD/160/2013 which excludes the 1st - 4th Respondents, who are not parties to that suit. The court is urged to hold that the Terms of Settlement is not an abuse of court process in view of the fact that the parties and the reliefs claimed in the two suits are not the same, and to decline the invitation to enlist in aid the provision of section 15 of the Court of Appeal, Act.
In his submission on this issue, Adedeji Obisanya Esq, learned counsel for the 5th - 7th Respondents, also cited the case of Saraki vs. Kotoye (supra) on what constitutes an abuse of court process and submitted that the Appellants have failed to show that the land, subject matter of suit No. LD/160/2013 is the same with the subject matter of suit No. LD/368LM/2015 as to lead to an abuse of court process. He argued that the 5th Respondent’s land being litigated in suit No. LD/160/2013 is only part of the total land claimed by the 1st - 4th Respondents in the suit leading to this appeal.
ISSUE 3
Considering the facts contained in the pleadings before the trial court, whether the trial court has jurisdiction to entertain this suit in the first place let alone entering the Terms of Settlement as the judgment of the court.
Learned counsel for the Appellants contended that the lower court lacks the jurisdiction to hear and determine suit No. LD/368LM/2015, now on appeal, on three grounds: (1) the suit is statute barred; (2) the suit is predicated on slavery and slavocracy; (3) the Writ violates the Rules of the High Court of Lagos State. He argued that the issue of jurisdiction could be raised formally or viva voce or even by the court itself, relying on the cases of Alhaji Tsoho Dan Amale vs. Sokoto Local Government & Ors (2012) LPELR -7842 (SC); NNPC vs. Chifco Nig. Ltd (2011) LPELR- 2022 (SC). On the issue of Statute of Limitation, Appellants contended that the suit of the 1st - 4th Respondents is statute barred in that it was filed more than 300 years after the accrual of the cause of action in 1692 when their fore-mother, Madam Orudu, put the Appellants’ ancestors on the land known as Igando-Orudu and went back to Epe, where she later died. According to learned counsel, since then the Appellants continued to exercise possessory and ownership rights on the land without adverse claim by anybody including the claimants/Respondents and their forefathers. He submitted on the authority of Akibu vs. Azeez (2003) LPELR-337 (SC, that knowledge of trespass or adverse possession is not a condition precedent for a successful plea of the Limitation Law of Lagos State, particularly, sections 16, 17, 19 and 20 thereof. He urged the court to hold that the 1st - 4th Respondents (the Claimants in the lower court) are caught by the Statute of Limitation of Lagos State, 2003. The Appellants also argued that to the extent that the suit before the lower court is predicated on slavery in view of the pleadings of the Claimants that the Appellants were slaves of their fore-mother, Madam Orudu, who put them on the land in dispute, the suit is illegal, unconstitutional, non-grantable and discloses no reasonable cause of action, in view of the abolition of slavery a long time ago. The court is urged to discountenance the claims of the Claimants which is premised on slavery and dismiss same on that ground. We are also urged to allow the appeal and set aside the Ruling of the lower court and also dismiss the claim before the lower court.
Learned senior counsel for the 1st - 4th Respondents submitted that it is the practice in our courts that when a party raises and pleads that the court lacks jurisdiction in the matter, the party will go ahead and file an application praying the court to determine the issue of lack of jurisdiction. That the court cannot, without a formal or oral application, determine the issue of jurisdiction raised in the pleading. He contended that in determining whether or not a suit is statute barred it is only the Statement of Claim that would be looked into and not the Statement of Defence. The court is called upon to discountenance all references to the 5th - 7th Respondents’ Statement of Defence. On when the cause of action has arisen, he referred to A.G. Adamawa State vs. A.G. Federation (2014) 14 NWLR (Pt. 1428) 515 @ 550; Egbe vs. Adefarasin (1987) LPELR -1032 (SC), and submitted that it arose only in 2011 when the 1st - 17th Appellants sold the land of the 1st - 4th Respondents, and not in 1692 as alleged by the Appellants. He prayed the court to dismiss the appeal on this sub-issue as the provisions of sections 16, 17, 19 and 21 of the Statute of Limitation of Lagos State is not applicable in this case. On the allegation that the claim at the lower court is premised on slavery, it is contended that paragraphs 2 -5 of the Statement of Claim merely narrated the history of the genealogy of some of the Defendants as is normally done in cases of traditional history of land. Learned senior counsel argued that the fact that slavery has been abolished does not obviate the fact of history as regards one’s antecedent. He submitted that if the allegation that some of the Appellants are descendants of slaves is expunged, the case of the 1st - 4th Respondents could still stand. The court is prayed to dismiss the appeal on this sub-issue. On the whole, we are urged to dismiss the appeal and order expeditions hearing of the claim and the counter claim.
The 5th - 7th Respondents also submitted that in determining whether a court has jurisdiction over a matter or not, it is the claim and not the defence that should be looked at –See A.G. Federation vs. A.G. Abia State (2001) 11 NWLR (Pt.725) 689 @740; FGN vs. Oshiomhole (2004) 3 NWLR (Pt.860) 305. Mr. Obisanya submitted that as at the time the consent judgment was entered, the Appellants do not have a valid Statement of Defence before the lower court as the defence they filed out of time were yet to be regularised. He argued that a party wishing to object to the jurisdiction of court has the option to either file a preliminary objection, a motion on notice or raise it orally, and that the Appellants have not adopted any of the options opened to them. He therefore contended that as at the date the Terms of Settlement was entered as judgment of the court between the 1st - 4thRespondents and 5th - 7th Respondents, the lower court has the requisite jurisdiction to entertain same. Learned counsel urged the court to dismiss the appeal for being frivolous.
ISSUE 4
Whether or not the Appellants Notice of Appeal and Brief of Arguments seek any prayers and reliefs against the 8th - 9th Respondents on the ground that the 8th - 9th Respondents are not privy and signatories to the consent judgment as per the Terms of Settlement executed between the claimants now sued as the 1st- 4th Respondents and the 18th, 20th and 21st Defendants at the lower court respectively.
In a nutshell, whether the Appellants have any cause of action against the 8th - 9th Respondents in this pending appeal before his Honourable court.
This is the lone issue formulated by the 8th and 9th Respondents and it queries whether the Appellants have any cause of action against the 8th and 9th Respondents to have made them parties to this appeal. Learned counsel argued that in the absence of privity of contract between the 8th and 9th Respondents on one hand and the 1st - 4th and 5th - 7th Respondents on the other, the 8th and 9th Respondents cannot benefit from the consent judgment and the Terms of Settlement appealed against and therefore ought not be made Respondents in his appeal. Some cases on privity of contract were cited and relied upon including Ogundare vs. Ogunlowo (1997) 6 NWLR (Pt. 509) 360; Rebold Industries Ltd vs. Magreola & Ors (2015) LPELR-24617 (SC) and Ebhota vs. Plateau Investment & Property Dev. Co. Ltd (2005) 15 NWLR (Pt.948) 266. He prayed the court to dismiss the appeal and order accelerated hearing of the substantive suit and the counter-claim.
In Reply to this issue, Appellants’ counsel submitted that the 8th and 9th Respondents were parties at the lower court and the parties in the appeal cannot be altered except the court otherwise ordered. It is further argued that 8th and 9th Respondents’ sole issue did not emanate from the Notice of Appeal and the Appellants’ Brief of Argument. The Appellants argued that the issue of not being necessary parties was never raised by the 8th & 9th Respondents at the lower court, and they are therefore estopped from doing same for the first time at the Appellate court. This court is referred to the case of Ekpe vs. Ekpe & Anor (2019) LPELR - 48341 (CA), where the court held that parties cannot be constituted differently from the trial court in the Court of Appeal without the leave of court. Also cited in this respect are Anyanwu vs. Oparaocha & Ors (2019) LPELR-47326 (CA); Apeh vs. PDP (2016) ALL FWLR (Pt.824) 1 @ 16; Agbaje vs. INEC & Ors (2015) 10 SC 42. This court is urged to discountenance the argument of the 8th and 9th Respondents as it does not contain any Reply to the issues raised in the Appellants’ Brief of Argument, and the 8th and 9th Respondents have neither cross-appealed nor filed a Respondent’s notice. Appellants’ counsel urged the court to resolve this issue in favour of the Appellants.
RESOLUTION OF ISSUES
Issue 1
Authorities are legion on the point, that service of court process on the opposing party is crucial and fundamental as it is the service of the process that gives the court the jurisdiction and the competence to entertain and make pronouncement on such court process. Without service, the jurisdiction of the court cannot be activated with respect to such process. Failure to serve process where service of the said is required is a failure which goes to the root of the adjudication process. The prominent exception to this rule is ex-parte application, where the opposing party is not expected to be put on notice. It is settled law that in proceedings where service of process is required, failure to serve process on the other party or parties is fatal to subsequent proceedings. Therefore, any proceeding that is conducted in the absence of service on the opposing party is a nullity. This is because the court would be bereft of the necessary vires to adjudicate and pronounce on the matter whose process has not been served. See Isijola vs. Ekiti State Micro Credit Agency (2014) LPELR-22708 (CA); Ahmed vs. Ahmed (2013) LPELR- 21143 (SC); SGBN Ltd vs. Adewunmi (2003) LPELR- 3081 (SC); Mark vs. Eke (2004) LPELR-1841 SC); Tsokwa Motors (Nig.) Ltd vs. UBA Plc (2008) LPELR-3266(SC); Ihedioha vs. Okorocha (2015) LPELR- 40837 (SC). It has equally been held by the apex court, times without number, that non-service of court process on a party, where service is required, amounts to breach of the party’s right to fair hearing. See Emeka vs. Okoroafor (2017) LPELR-41738 (SC); Ihedioha vs. Okorocha (supra).
In the instant case on appeal, the Terms of Settlement between the 5th-7th Respondents, who were the 18th, 20th and 21st Defendants in the lower court and the 1st-4th Respondents who were the Claimants at the lower court, was not served on the Appellants. Counsel to the Appellants drew the attention of the lower court to the fact that his clients were not served. The lower court, whose duty it is to ensure that all processes meant for service are duly served on the opposing parties, jettisoned that sacred duty and proceeded to enter judgment as per the Terms of Settlement. The fact that the Terms of Settlement contained the names and addresses of parties to be served, which includes the Appellants herein, should have made the lower court wary in hastily entering the Terms of Settlement as judgment of the court without service on parties named therein. That is not all, the lower court descended into the arena of dispute, without prompting, to make case for the Respondents, when it stated at page 546 of the Record of Appeal thus:
“I have looked at the terms of settlement filed and executed between the claimant and 18th, 20th and 21st defendants and I do not see how it affects the 1st and 19th defendants.”
The concept of fair hearing, which is synonymous with fair trial, connotes giving equal opportunity to the parties to be heard in the litigation before the court. It is a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties. See INEC vs. Musa (2003) LPELR-24927 (SC); In the case of Ovunwo vs. Woko (2011) LPELR-2841 (SC), the Supreme Court, Per Adekeye, JSC, held:
“The right to fair hearing is a very essential right for a person to secure justice. A fair hearing connotes or involves a fair trial and a fair trial of a case consists of the whole hearing.”
It follows therefore that where one of the parties to the litigation is not giving an opportunity to be heard, the principles of fair hearing is breached. Similarly, where the Judex descends into the arena of contest in favour of one of the parties before it, there cannot be said to be fair hearing. In this light, I am in agreement with learned counsel for the Appellants that the non-service of the Terms of Settlement not only deprived the Appellants of their right to fair hearing as enshrined in section 36 of the Constitution of the Federal Republic of Nigeria, 1999, but also divested the lower court of the requisite jurisdiction to entertain the Terms of Settlement and enter same as judgment of the court. It makes no difference that the Appellants are not parties to the said Terms of Settlement, it suffices that they are parties to the suit in which the Terms of Settlement was filed as a court process. What is more, the parties who executed the Terms of Settlement appreciates/recognizes the importance of having same served on the Appellants, hence the endorsement for service on the Appellants. Unfortunately, the lower court abdicated its duty of ensuring that the Appellants were served before proceeding to entertain the Terms of Settlement.
Further to the above, the provision of paragraph 5 of the Terms of Settlement underscores the necessity for serving same on the Appellants. In that paragraph, the 1st - 4th and 5th - 7th Respondents, who are signatories to the Terms of Settlement recited thus:
“Sometimes in March, 2013, Captain G.O.C. Oguh invaded the said land demolishing all the construction work done by the 18th Defendant which led to the matter still pending before the court in Suit No. Re: Suit No: LD/160/2013 Meridian Properties Limited vs. Captain GOC E. Ugoh & Ors.”
By making a disparaging or unpalatable remark on the person of one of Appellants, the 18th Appellant, common sense and justice dictates that he should have been served to enable him respond to the allegations against him before further step is taken on the Terms of Settlement, especially when counsel representing him protested the non-service of the process in question. Alas, the lower court saw it differently. As parties to the suit No. LD/368LM/2015, the Appellants are entitled to be served with all processes filed in the suit, except where any Statute or Rules permits the court to handle such a process ex-parte. Terms of Settlement between some of the parties to the suit, is certainly not one of the processes that can be dealt with ex-parte. There cannot be a valid adjudication or pronouncement on the Terms of Settlement without service of same on the Appellants. See Tsokwa Motors (Nig.) Ltd vs. UBA Plc (supra) where Aderemi, JSC, stated at page 11 of the report: “It is trite law that non-service of process on a party properly so-called will render proceedings on such unserved process null and void.” In Apeh vs. PDP & Ors (2016) LPELR-40726, the apex court held that all parties to a proceeding are entitled as of right to be served with all the court processes, and that any failure to do that will vitiate the entire proceedings, no matter how well conducted. I dare say that the proceedings leading to this appeal was not even well conducted in the first place. The net result of all my legal analysis here is that the lower court was bereft of the requisite jurisdiction when it entertained the Terms of Settlement and entered judgment on same for want of service of the said Terms of Settlement on the Appellants. Consequently, 1 resolve Issue 1 in favour of the Appellants.
Issue 2
Before scrutinizing the Record of Appeal to determine whether or not suit No. LD/368LM/2015, wherein the Terms of Settlement was entered as the judgment of the lower court is an abuse of court process in view of the pendency of suit No. LD/160/2013, let us examine what exactly amounts to an abuse of court process. An abuse of court process is the use of the machinery of the court for illegal, malicious and vexatious purpose. Abuse of court process also applies to proceeding which is wanting in bonafide and is frivolous, annoying and oppressive to the opponent. See 7UP Bottling Company Ltd vs. Abiola & Sons Bottling Company Ltd (1996) 7 NWLR (Pt.) 714; Amaefuna vs. State (1998) 2 NWLR (Pt.775) 156; C.B.N. vs. Ahmed (2001) 5 SC (PT. II) 146.
In Ukachukwu vs. PDP (2013) LPELR-21894 (SC) at page 19 of the Report, the Supreme court, Per Onnoghen, JSC, (as he then was) had this to say on the meaning and nature of abuse of court process:
“The concept of abuse of court process involves circumstances and situations of infinite variety though its common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. The abuse may lie both in proper and improper use of the judicial process in litigation though generally the term is used in relation to improper use of the judicial process to the annoyance, irritation, of the opponent and the effective and efficient administration of justice, such as institution of multiple actions on the same subject matter against the same opponent on the same issue. To institute an action during the pendency of another one claiming the same reliefs amounts to an abuse of court process and it does not matter whether the matter is an appeal or not, as long as the previous action has not been finally disposed of. It is the subsequent action that is in abuse of the process of court.”
In the case of Umeh & Anor vs. Iwu & Ors (2008) LPELR-3363 (SC), at pages 21-22 of the Report, Chukwuma-Eneh, JSC, had this to say on abuse of court process:
“Abuse of court process therefore simply in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues”
In Agwasim vs. Ojichie (2004) LPELR- 256 (SC), Edozie JSC, at pages 10-11, held as follows:
“It is trite law that abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways, such as instituting a multiplicity of action on the same subject matter against the same opponent on the same issue or a multiplicity of the same matter between the same parties. It also occur by instituting different actions between the same parties, simultaneously in different courts even though on different grounds where two similar processes are used in respect of the exercise of the same right, for example, a cross-appeal and respondent’s notice, etc.”
In the same vein, Ejiwunmi, JSC, reiterated the same legal principle in Ikine vs.Edjerode (2001) LPELR-1479 (SC), when he said at page 31:
“For an action to be declared frivolous, vexatious, oppressive and an abuse of the process of court, it must be shown quite clearly that there are two or more actions between the same parties in respect of the same subject matter in one or more courts at the same time.”
Speaking on abuse of the process of court, Rhodes-Vivour, JSC, in Mabamije vs. Otto (2016) LPELR-26058 (SC) said:
“My lords, instituting multiplicity of actions on the same subject matter against the same opponent on the same issue would amount to an abuse of process.”
In Okafor & Ors vs. The Attorney General and Commissioner for Justice & Ors (1991) LPELR-2414(SC), Karibi-Whyte, JSC, at page 34, stated:
“It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the court. But this is so only where the action is between the same parties with respect to the same subject matter. The court has a duty in such a situation to interfere to stop an abuse of its process.”
In Igbeke vs. Okadigbo (2013) LPELR-20664 (SC), Galadima, JSC, at pages 30-31, posited thus:
“This court has said in a plethora of decisions that multiplication of actions on the same matter can constitute an abuse of the process of the court as long as the parties to the actions and the subject matter are the same.”
Peter-Odili, JSC, in Society BIC S.A. vs. Charzin Industries Ltd (2014) LPELR-22256 (SC), observed that:
“It has to be said, assuming there was the necessary authority for the court to enter into the discourse of abuse of court process due to multiplicity of suits, what would amount to multiplicity of suits must be shown to exist and that the two suits or more are on the same subject matter and issues and the parties the same. All these components must co-exist for the ingredients that would qualify the particular suit as an abuse of court process based on multiplicity of suits.”
The common denominator in what all the learned Law lords of the apex court stipulated in the quoted portions of their respective judgments in the various cases above, is that for a suit to qualify as an abuse of the process of court on the basis of multiplicity of actions, the parties, the subject matter and the issues must be the same in the present action and the other action or actions, pending or disposed of. Thus, the resolution of whether the action, leading to the ruling now on appeal, constitute an abuse of the process of court will revolve around whether the parties, the subject matter and the issues arising in the action are the same/similar to those in the action in suit No. LD/160/2013.
Now, let us examine the parties, subject matter and issues in suit No. LD/160/2013 pending before the Epe Division of the High Court of Lagos State and suit No. LD/368LM/2015, subject of the ruling appealed against. In the earlier suit No. LD/160/2015, the 5th Respondent herein is the Claimant. The 18th, 2nd, 3rd, 5th, 6th, 10th and 11th Appellants are the Defendants. The 4 Claimants in suit No. LD/368LM/2015 who are the 1st - 4th Respondents in this appeal, are neither Claimants nor Defendants in that suit. That is to say, they are not parties to the suit No. LD/160/2013. There is no material or any shred of evidence in the Record of Appeal to show that Meridian Properties, the Claimants in suit No LD/160/2013 either belongs to the 1st - 4th Claimants/Respondents or that it purchased the property from them. In other words, there is no evidence to show that the 1st - 4th Claimants in the instant suit on appeal are either the alter ego of Meridian Properties or its Vendor. Therefore, even though seven of the twenty-two Defendants in the current suit are the Defendants in the earlier pending suit, the Claimants in the two suits are distinct and unrelated. Consequently, I find and hold that the parties in suit No. LD/160/2013 are not the same with the parties in suit No. LD/368LM/2015.
The next consideration is the subject matter. The claimant in the earlier suit No. LD/160/2013, Meridian Properties claimed declaration of title over landed property situate at Ofiran Village measuring 26.486 Hectares. In the suit, subject of the Ruling now on appeal, the 4 Claimants who are the 1st - 4th Respondents in this appeal claimed, among other reliefs for declaration of title to various pieces of land known as Igando Orudu comprising of Ayeteju, Igando, Alakun, Ofiran and Oke Olokun. It is clear therefore that the parcel of land claimed by Meridian Properties in suit No. LD/160/2013, situate only at Ofiran Village, is only but a small fraction of the land claimed by the 1st - 4th Respondents in suit No. LD/368LM/2015. It is trite law that where the subject matter in the earlier suit is a smaller area of land and the subject matter in the latter suit is a much larger parcel of land, the subject matter of the two suits cannot be said to be the same. See Dokubo vs. Omoni (1999) 8 NWLR (Pt.616) 647; Okukuje vs. Akwido (2001) 3 NWLR (Pt.700) 261; Anwoyi vs. Shodeke (2001) 6 NWLR (Pt.709) 321; Biariko vs. Edeh-Ogwuile (2001) 12 NWLR (Pt.726) 235. Thus, the subject matter of litigation in the two suits are not the same, and I so hold. Issue 2 is accordingly resolved against the Appellants.
Issue 3
This issue concerns the allegation of lack of jurisdiction on the lower court to entertain the Terms of Settlement as well as the suit on the ground that the suit is statute barred and that it is founded on slavery and slavocracy which renders it illegal and unconstitutional. I will attend to this issue brevi manu. Whether the lower court has jurisdiction to entertain the suit is yet to be raised and argued before that court. The ruling of the lower court appealed against said nothing about the issue of jurisdiction with respect to the suit pending before that court. Conceded that the Appellants have raised the issue of jurisdiction in their pleading, that issue is yet to be argued and ruled upon by the lower court. This court cannot be stampeded into rushing to adjudicate on whether the lower court has jurisdiction to hear and determine the suit before it when that court has not yet been moved by the Appellants to make that determination on its jurisdiction or the lack of it. Of particular importance is the Notice of Appeal filed by the Appellants and the reliefs claimed under paragraph 4 thereof. The Notice of Appeal clearly indicated that the appeal is against the Ruling of the lower court entertaining the Terms of Settlement executed by the Claimants/1st - 4th Respondents on one hand and the 5th - 7th Respondents on the other. The reliefs sought by the Appellants in paragraph 4 of the Notice of Appeal is for an order setting aside that Ruling of the lower court in which consent judgment was entered between the parties to the Terms of Settlement. Even though learned counsel for the Appellants expanded the Grounds of Appeal to include issue of jurisdiction of the lower court to entertain the main suit before it, this court will not go outside the reliefs claimed by the Appellants, which is tied and restricted to the Terms of Settlement and the Judgment entered pursuant thereto. There is no basis for this court to invoke the provisions of section 15 of the court of Appeal Act to determine the jurisdiction of the lower court to entertain the suit when the issue of jurisdiction is yet to be formally raised by the Appellants and determined by the lower court. I resist the invitation to determine the jurisdictional competence of the lower court under an appeal which questions the propriety of entertaining the Terms of Settlement without affording the Appellants the opportunity to be heard on the said Terms of Settlement. Issue 3 ought to be and is hereby resolved against the Appellants.
Issue 4
This issue is the sole issue formulated by the 8th and 9th Respondents in their Brief of Argument. The issue is whether any relief is claimed by the Appellants against the 8th and 9th Respondents to necessitate making them Respondents to this appeal. Further, that not being parties to the Terms of Settlement, they should not have been joined as Respondents to the appeal. I have noted the arguments canvassed by these Respondents and the Appellants and wish to point out that the principle of privity of contract which the 8th and 9th Respondents dissipated so much energy on, together with the judicial authorities cited in that regard does not apply to the issues in this appeal. Whether 8th and 9th Respondents were parties to the Terms of Settlement entered as consent judgment between the 1st-4th and 5th-7th Respondents and whether or not any relief is sought against them specifically by the Appellants are immaterial to their joinder as Respondents in this appeal. What matters is the fact that the 8th and 9th Respondents are Defendants to the suit that gave rise to the ruling appealed against. The law is trite that an appeal is a continuation of the suit at the trial court, and unless ordered by the court, parties to the suit at the lower court shall not be altered on appeal. The character of any case at its inception remains so sacrosanct that only leave of court can permit any alteration. See Apeh vs. PDP (supra); Jen vs. Lau (2014) LPELR-24167 (CA). The 8th and 9th Respondents are, for the purpose of this appeal, proper parties they being parties in the suit at the lower court. See Green vs. Green (1987) LPELR-1338 (SC). For the aforementioned reasons, I resolve issue 4 in favour of the Appellants and against the 8th and 9th Respondents.
Having resolved all the issues in this appeal, one way or the other, I hold that notwithstanding the resolution of issues 2 and 3 against the Appellants, this appeal succeeds and is hereby allowed. The Ruling of the lower court adopting the Terms of Settlement executed by the 1st - 4th and 5th - 7th Respondents as judgment of the court between them in suit No. LD/368LM/2015 delivered on 20th October, 2015 is set aside. Expeditious hearing of the suit No. LD/368LM/2015 is hereby ordered. Parties shall bear their respective cost of this appeal.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Chief Adeniyi Akintola, SAN, for the Appellants, M.O.A.
Olawepo with him.
Tolulope Taiwo (Mrs.) for the 1st - 4th Respondents
Dapo Opakunle for the 5th - 7th Respondents
T.O. Idris for the 8th & 9th Respondents
CA/L/1222/15 M.I. SIRAJO JCAPage
