HONOURABLE MINISTER FOR WORKS AND HOUSING
v.
TOMAS NIGERIA LIMITED
2001-LD-CA-762
Court Of Appeal
6th July, 2001.
Justices:
Dahiru Musdapher, J.C.A.
Muhammad Saifullahi Muntaka-Coomassie, J.C.A.
Zainab Adamu Bulkachuwa, J.C.A. (Read The Leading Judgment)
Subject Matter(s):
1. Action Against An Agency Of The Federal Government
2. Notice Of Discontinuance
3.Withdrawal Of Appeal
4.Multiplicity Of Actions
5.Abuse Of Court Process
Final Order:
Appeal Allowed.
RATIO DECIDENDI
DISCONTINUANCE OF PROCEEDINGS- Requirement Of Leave For Discontinuance Of Suit After Obtaining Substantial Benefits; Limitation On Plaintiff’s Dominus Litis Rights
By virtue of Order 30, of the Federal High Court Rules, the discontinuance of a suit may be made with or without leave depending on the circumstances of the case. The principle underlying the requirement for leave to discontinue a suit is that after proceedings have reached a certain stage or where the plaintiff had obtained substantial benefits, he cannot thereafter be allowed to escape by the side door and avoid the contest, having brought his adversary into court and having obtained benefits to the detriment of the defendant. In my view, when, as in this case, the plaintiffs/respondents obtained ex-parte orders to the prejudice of the appellants, the plaintiffs/respondents are no longer dominus litis. It is for the Judge to say whether the action should be discontinued or not. See Aghadiuno v. Ongbogu (1998) 5 NWLR (Pt.548) 16. In my view, considering the undisputed facts of this case, the plaintiffs/respondents having secured substantial benefits and advantages in the form of the injunctive reliefs have lost the power to discontinue the suit without leave. Iguh, JSC said in the case of The Vessel St. Roland v. Oshinloye (1997) NWLR (Pt.500) 387 at 412 thus: “Additional to all the above, is the fact that it is clear abuse of the process to use the machinery of notice of discontinuance without leave to improve a plaintiff’s position unjustly. See Castanho v. Brown & Root UK Ltd. (1981) Llyod’s Rep. 103 at 114 – 115. Similarly filing a notice of discontinuance immediately after obtaining substantial interim advantages or some unjust enrichment in a suit to the prejudice of the defendant constitutes an abuse of the process.”
COMPETENCE OF COURT – When A Court Is Said To Be Competent To Determine A Matter Before It
A court is said to be competent to determine a matter before it when the following are present:1. if it is properly constituted with respect to the number and qualification of its memberships; 2. the subject-matter of the action is within its jurisdiction;3. the action is initiated by due process of law; and 4. any action necessary to the exercise of its jurisdiction has been fulfilled. Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Ogunmokun v. Mil. Adm. Osun State (1999) 3 NWLR (Part 594) 261; A.-G., Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Part 618) 187; Ajao v. Alao (1986) 5 NWLR (Part 45) 802. Applying the above rules to this case, rule 2 will therefore be the determining factor as to the competence of the trial court, the claim of the parties before the court will determine whether it has jurisdiction or not. Adeyemi v. Opeyori (1976) 9-10 SC 31; Tukur v.Government of Taraba State (1997) 6 NWLR (Part 510) 549; Holec Projects (Nig.) Limited v. Dafeson Int’l Limited (1999) 6 NWLR (Part 607) 502 C.A.
JURISDICTION- Scope And Limitation Of Federal High Court’s Exclusive Jurisdiction Under Section 251(1) Of The 1999 Constitution And The Application Of The Proviso To Contractual Disputes Involving Federal Government Agencies
It is not in doubt that S. 251(1)(r) of the 1999 Constitution confers exclusive jurisdiction on the Federal High Court in “any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.” It is however a misconception to say that whenever the Federal Government or an act of its agencies is involved in a case the only court for the determination of the case is the Federal High Court. By the proviso to S. 251(1)(q)(r)(s) of the 1999 Constitution, nothing in the provisions of the sub-sections shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity”. Here the plaintiffs/respondents are complaining about a contractual agreement between them and an agency of the Federal Government. The agreement is one based on the law of contract, therefore, being based on law falls under the proviso to S. 251(1) (a)(r)(s) of the 1999 Constitution. The above proviso will effectively confer jurisdiction on any other court in this instance, the High Court of the FCT to hear and determine the matter. The supremacy of the Constitution is paramount here. It has conferred exclusive jurisdiction on the Federal High Court and was specific as to subject matters. S. 7(1)(a)(i) of the Federal High Court (Amendment) Decree No. 60 of 1991 must therefore be curtailed by constitutional provisions. If it is in any way inconsistent with the specific powers or jurisdiction of the Federal High Court as provided in the Constitution it must to the extent of that inconsistency be void. By virtue of the provisions of S. 251(1)(e), the Federal High Court has exclusive jurisdiction in civil matters and causes arising from any Act or Decree relating to companies and allied matters and any other common law relating to the operation of companies. It is however, not every act of a company that is covered by the said provisions – Jammal Steel Structures Ltd. v. ACB (1973) 1 All NLR (Pt.2) 208; Bi Zee Bee Hotels Ltd. v. Allied Bank Ltd. (1996) 8 NWLR (Pt.465) 176; NIDB v. Fembol Nigeria Ltd. (1997) 2 NWLR (Pt.489) 543. In this case the dispute arose as to whether the plaintiffs/respondents as companies are entitled by a contractual agreement to run and manage the toll plazas and the life span of the said contractual agreement. It will therefore be out of place to say that the dispute relates to any Act or Decree relating to companies and allied matters or any law relating to the operation of companies. In the circumstances, this case cannot be said to be within the purview of S. 251(1)(e).
ABUSE OF COURT PROCESS- Principles Governing Abuse Of Court Process And The Institution Of Multiplicity Of Actions On The Same Subject Matter
“There is said to be an abuse of the process of the court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. It is not the existence or pendency of a previous suit that causes the problem. Rather it is the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not yet been disposed of, that constitute abuse of process of court”. Per Karibi-Whyte, JSC in Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) 659 at 681. See also Morgan v. West African Automobile Engineering Co. Ltd. (1971) 1 NMLR 219: Williams v. Hunt (1905) 1 KB 512; Slough Estates Ltd. v. Slough Borough Council (1968) Ch 299; Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West Africa Incorporated (1966) 1 All NLR 170. For a case therefore to be said to be an abuse of the process of court it must contain all the above ingredients.
NOTICE OF DISCONTINUANCE- Duty Of The Court To Prevent Technicalities From Defeating Substantial Justice
The courts should always be very cautious in not allowing technicalities to be used in perpetrating injustice. The right of the plaintiffs/respondents to discontinue this matter and avoid the contest through the back door in my view is lost. The notice of discontinuance should be set aside since it was filed mala fide. See Okafor and Others v. A.-G. of Anambra State (1991) 6 NWLR (Pt.200) 659. In the case Fakih Bros v. Moller Copenhagen (1994) Lloyd’s Rep. 103 where a notice of discontinuance was filed before defence but after an injunction has been granted, the notice of discontinuance was set aside. See also Ernst and Young v. Bottle Mining Plc, The Times, March, 22nd 1996.
ABUSE OF COURT PROCESS-Principles Governing Abuse Of Court Process And The Institution Of Multiplicity Of Actions On The Same Subject Matter
Now, the law is well settled that it is prima facie vexatious and oppressive to take two concurrent actions in the courts for the same reliefs. See Morgan v. W.A.A. & Eng. Co. Ltd. (1971) 1 NMLR 221. Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue, is an abuse of the process of the court. Kotoye v. Saraki (1992) 9 NWLR (Pt.264) 156. Every court must be ready to prevent the improper use of its machinery from being used as a means of vexation and oppression in the process of litigation. Indeed it is an abuse of process of the court for one to litigate in two courts simultaneously over an issue against an opponent. See Ode v. Balogun (1999) 10 NWLR (Pt.622) 214. The abuse of the process of the court is a term generally applied to a proceeding which is wanting in bonafides and is frivolous, vexatious and oppressive. Abuse of process can also mean abuse of the legal procedure or improper use of the legal process. It always involves some bias, malice, some deliberateness, some desire to misuse, or pervert the system of administration of justice. See Olutinrin v. Agaka (1998) 6 NWLR (Pt.554) 366.
JURISDICTION- Fundamental Nature Of Jurisdiction And Its Effect On The Competence Of The Court
The issue of jurisdiction is fundamental, it is the foundation and the pivot of adjudication. Thus if a court lacks jurisdiction, it automatically lacks the necessary competence to try the case at all. A defect in competence is very fatal because the entire proceedings would be null and void ab initio however well conducted or well decided they might otherwise be. See IGP v. Aigbiremelen (1999) 13 NWLR (Pt.635) 443.
