Ashley Agwasim & Anor v. David Ojichie & Anor

Although an appreciation of the facts leading to this appeal is not relevant for its determination, it is nonetheless proper to state the facts albeit briefly. The case arose from a road accident that occurred on 31st December 1986, near Okuokoko village along Ughelli/Warri Road. The accident involved the collision of a luxurious bus No. BD 9558A and a Peugeot 504 station wagon No. BD 5316 HA which caused the death of Friday Ojichie, a passenger in the latter vehicle. In consequence of the death of Friday Ojichie, his dependants in a representative capacity as plaintiffs commenced proceedings in the High Court of Delta State holden at Effurum claiming jointly and severally damages in negligence against the 1st and 2nd defendants as the driver and owner respectively of the luxurious bus. The trial court in its judgment delivered on 25/8/97 found negligence directly proved against the 1st defendant and vicariously established against the 2nd defendant and they were accordingly jointly and severally mulcted in damages in the sum of N453,970.00.

P.1

Against that judgment, the defendants as appellants  lodged an appeal to the Court of Appeal, Benin Division, as per the Notice of Appeal dated 25th August, 1997, and filed the same day. After the settlement of the record of appeal, the Court of Appeal dealt with several interlocutory applications filed by the parties. One of such applications is a motion on notice dated 27/9/98 by the plaintiffs as respondents and applicants in the  motion praying for the dismissal of the appeal on the ground that the appellants had defaulted in filing their briefs of argument as required by Order 6 Rule 10 of the Court of Appeal Rules, Cap 62 Laws of the Federation 1990. That motion was heard and granted by the Court of Appeal in its ruling delivered on 25th January, 1999, whereby it dismissed the appellant’s appeal for want of diligent prosecution. Dissatisfied with that ruling, the appellants simultaneously filed two processes. One process is an appeal filed on 10/2/99 by the appellants to the Supreme Court against the said ruling of Court of Appeal delivered on 25th January, 1999. The relief sought in the appeal is that the ruling appealed against be set aside and that the appeal dismissed be heard on its merit. The second process is a Motion on Notice dated 9th February, 1999, filed on 10/2/99 by the appellants before that Court of Appeal seeking, among other things, “an order for restoration/relisting its Appeal No CA/B/83/98 dismissed on the 25th day of January, 1999, for want of diligent prosecution to enable the matter to be heard on merit.”

P.2

This motion was heard and struck out by the Court of Appeal in its ruling delivered on 7th July, 1999. Still undaunted, the appellants have on 16th July, 1999, lodged before this court an appeal against the ruling of the Court of Appeal delivered on 7th July, 1999, praying that, that ruling be set aside so that the appeal could be relisted and heard on its merit before the court below. It is that ruling delivered by the Court of Appeal on 7th July, 1999, striking out the motion to relist the appeal dismissed for want of diligent prosecution that is the focus of this appeal.

Learned counsel for the parties filed and exchanged briefs of argument. The respondents’ counsel adopted and relied on his brief. As the appellants’ counsel was absent, the appeal was deemed argued on the brief he had filed. In the appellants’ brief of argument, the sole issue for determination was framed thus:-

“Whether the Justices of the Court of Appeal Benin City properly directed themselves in refusing to restore the appeal inspite of the fact that the appellants applied for the restoration of appeal giving cogent and compelling reasons for their inability to be in court at the time the appeal was dismissed having regard that service of processes is fundamental in any judicial proceedings.”

For the respondents, the issue identified for determination is:-

“Were the learned Justices of the Court of Appeal, Benin Division/ right in striking out the appellants’ motion dated 9/2/99 on 7/7/99.”

In his brief of argument, learned counsel for the appellants submitted that the respondents’ motion for dismissal of the appeal was not served on them before the Court of Appeal proceeded to dismiss the appeal.

P.3

It was pointed out that the motion on notice was allegedly served on them at Warri instead of through their counsel, Chuks Nwolisa & Co of 95, Ojuelegba Road, Surulere, Lagos, being their correct address for service as indicated in their Notice of Appeal against the judgment of the High Court. It was further pointed out that the said motion on notice did not indicate a hearing date. It was then submitted that failure to give notice of proceedings to the opposing party in a case where service is required is a fundamental omission (except where proceedings are ex-parte) which renders such proceedings void because the court has no jurisdiction to entertain the matter, citing in support of the proposition the following cases:- Sken Consult v. Ukey  (1981) 1 S.C. 8, Obimonure v. Erinosho (1966) All NLR 245 Katsina v. Makudawa  (1971) NMLR 100.
Learned counsel referred to the affidavit in support of their motion for relisting the appeal dismissed in which it was averred that the appellants’ motion for the dismissal of their appeal was not served on them the appellants before the dismissal of the appeal by the court below. He stressed that on becoming aware of the dismissal of the appeal, the appellants took sufficient, reasonable and diligent steps to restore the appeal for the matter to be decided on merit but that the court below for no good reasons refused to grant their application to relist the appeal for it to be determined on merit. We were therefore urged to allow this appeal and order that the appeal against the judgment of the trial court to be restored for it to be determined on its merit before the Court of Appeal.

Responding to the above submissions, learned counsel for the respondents submitted in his brief of argument that the learned Justices of the Court of Appeal were right in striking out the appellants’ application dated 9/2/99 but filed on 10/2/99 for the relisting of the appeal dismissed for want of prosecution.

P.4

It was contended that the lower court having dismissed the appeal on 25/1/99 became functus officio and therefore lacked the jurisdiction to entertain the appellants’ motion filed on 10/2/99 for the restoration of the appeal.

It was canvassed that an appeal dismissed under Order 6 Rule 10 of the Court of Appeal Rules, Cap 62 Vol. IV Laws of the Federation, 1990, cannot be restored and relisted as the appellants sought to do and as authority for the proposition, the case of Akanke Olowu & 3 Ors v. Amudatu Abolore & Ors (1993) 6 SCNJ (Pt. 1) I was cited. Furthermore, learned counsel contended in his brief that the court below satisfied itself that the appellants were duly served the motion for dismissal of the appellants’ appeal before proceeding to dismiss it on 25/1/99 on the ground that the appellants had not filed their brief long after the expiration of the period of 60 days limited by the Rules for doing so. It was further argued that the appellants were duly served with the respondents’ motion for the dismissal of the appeal through their address in Warri provided by the appellants from which address they had previously received several processes. We were urged to dismiss the appeal.

As is evident from the submissions of both counsel, it would appear as they conceived it that this appeal rested on service or failure to serve the appellants the respondents’ motion for the dismissal of the appellants’ appeal against the judgment of the trial court. If that were so, one would appreciate with commendation the submissions of learned counsel for the appellants. It seems to me, with respect, that learned counsel has misapprehended the substances of the ruling of the Court of Appeal delivered on 7/7/99, which is the subject matter of this appeal.

P.5

For their brevity, I will set out below the proceedings of that court on 7/7/99 leading to the ruling appealed against.

“2nd Respondent is represented Chief C. Nwolisa for applicants Chief Nwolisa says he has a motion dated 9/2/99 relisting his appeal dismissed for want of prosecution and for stay of execution. He applies to withdraw prayer (2) for stay. Mr. Onwamuedo does not oppose withdrawal of prayer (2) for stay. But he is opposing prayer 1 because there is already an appeal against the dismissal.

Court:   Motion is (sic) dated 9/2/99 struck out with N500 costs in favour of the respondents.”

(underlining is for emphasis)
It is evident from the above excerpt that the ruling of the court below is the order striking out the appellants’ motion to relist the appeal dismissed for want of prosecution on 25/1/99. The reason for striking out the motion as borne out from the underlined portion of the excerpt is that there was a pending appeal before this court filed by the appellants against the dismissal of the appellants’ appeal. The clear position is that on 25/1/99, the Court of Appeal dismissed the appellants’ appeal for want of prosecution. In consequence the appellants lodged an appeal to this court praying that the appeal that was dismissed should be relisted and determined on merit by the Court of Appeal. Simultaneously with filing the said appeal to this court, the appellants then filed the motion before the Court of Appeal seeking the substantially same reliefs prayed for in their appeal to this court against the dismissal of their appeal against the decision of the trial court.

P.6

Clearly, that was an abuse of judicial process. It is trite law that the 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 action of the same matter between the same parties. It also occurs 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 respondents’ notice, etc. See Okorodudu v. Okoromadu (1977) 3 S.C. 21; Oyegbola v. Esso of West Africa Inc (1966) 1 All NLR 170; Harriman v. Harriman (1989)5 NWLR (Pt. 119) 6; Anyaduba v. N.R.T.C. Co. Ltd (1990) 1 NWLR (Pt. 127) 397; Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 278; Alade v Alemuloke (1988) 1 NWLR (Pt. 69) 207. In the appeal on hand, and in the face of the appellants’ appeal filed on 10/2/98 to the Supreme Court against the Court of Appeal’s ruling of 25/1/99 and the appellants’ motion filed on 10/2/99 for the relisting of the appeal that was dismissed by it, both processes filed simultaneously in different courts and seeking the same reliefs, the appellants had grossly abused the process of court and the Court of Appeal was eminently justified in striking out  the appellants’ motion to relist the appeal that was dismissed on 25/1/99 in default of filing their briefs. However meritorious that motion might be, the Court of Appeal did the right thing. Its ruling of 7/7/99 striking out the appellants’ motion for relisting the appeal dismissed is without reproach.

This appeal is palpably groundless. It is accordingly dismissed with N10,000.00 costs in favour of the respondents against the appellants.

P.7