ASPHALT UNITY CONSTRUCTION LTD v.ONWUKA & ORS

CITATION: (2018) LPELR-46253(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON FRIDAY, 23RD NOVEMBER, 2018Suit No: CA/OW/07/2016

Before Their Lordships:

THERESA NGOLIKA ORJI-ABADUA Justice, Court of AppealITA GEORGE MBABA Justice, Court of AppealIBRAHIM ALI ANDENYANGTSO Justice, Court of Appeal

BetweenASPHALT UNITY CONSTRUCTION LIMITED - Appellant(s)

And1. HIS WORSHIP OCHEA. KALU ONWUKA, ESQ.(Senior Magistrate Grade 1)2. UMUNNEOCHI TOWN PLANNING AUTHORITY3. ATTORNEY GENERAL AND COMMISSIONER FORJUSTICE OF ABIA STATE NIGERIA

- Respondent(s)

RATIO DECIDENDI1. APPEAL - FRESH POINT(S) ON APPEAL: Instance(s) where an issue cannot be termed a fresh issue on appeal

"A point already raised and discussed at the trial Court, in my view, remains part of the proceeding at the trial, and an issue raised therefrom on appeal cannot be termednew or fresh issue. See the case of Chike Vs Nosike (2017) LPELR - 42618 (CA) & Salisu & Anor Vs Mobolaji & Anor (2013) LPELR - 22019 SC on guide, as to when a freshissue arises in Appeal, and how to raise it."Per MBABA, J.C.A. (P. 19, Paras. A-C) - read in context

2. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES): Appropriate order to make where a suit or process constitutes an abuse of Court process"Where it is established that a process constitutes an abuse of Court process, it is liable to be dismissed. See IGBEKE VS OKADIGBO & ORS (2013) LPEZR - 20664 (SC)Page 31 paragraph D.Again it has been held in DINGYADI ANOR VS INEC & ORS (2011) LPELR- 950 (SC) page 24 paras E-F as follows: -This Court (SC) in DINGYADI VS. INEC (No. 2) stated categorically that abuse of Court is not merely an irregularity that can be pardoned but constitutes a fundamental defectthe effect of which will lead to dismissal of the process which is abusive. In the case of ARUBO VS AIYELERU (1993) 3 NWLR (PT. 280) 125, the Supreme Court took the standthat; "Once a Court is satisfied that the proceedings before it amount to an abuse of process it has the right, in fact the duty to invoke its cohesive powers to punish theparty which is in abuse of its process. Quite often that is exercised by a dismissal of the action which constitutes the abuse." ADESANOYE VS. ADEWOLE (2000) 9 NWLR (Pt.127) 671."Per ANDENYANGTSO, J.C.A. (Pp. 37-38, Paras. D-C) - read in context

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3. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES): What constitutes abuse of Court process"...With the above painstaking effort by the learned trial Court documenting the effort by the 2nd Respondent's Counsel, to save the day for the Appellant; whether or not toproceed to the taking of the application for Judicial Review, in the face of the pending appeal, seeking the same reliefs as sought by the application for the Judicial Review, Ithink the learned trial Judge acted, circumspectly, and properly, when he opted to determine the preliminary issue, raised by the 2nd Respondent at the trial.Of course, there is no ground(s) of appeal, faulting the entertainment of the preliminary issue by the 2nd Respondent at the trial Court, as it was obvious Appellant waspursing two different cases, at two separate Courts of coordinate jurisdictions, on the same subject matter, seeking, substantially, the same relief(s), and the parties were,substantially, the same: that is, the instant application, FHC/UM/M/06/2015 (now on appeal) and the Appeal No. HUM/1A/2014, pending at the Abia State High Court.The law frowns seriously against such unwholesome practice(s) of a party taking out multiple actions in different Courts (or even in the same Court), over the same subjectmatter, concerning the same parties, thereby exposing the administration of justice to jeopardy, and peril of confusion and possible conflicts in its decisions, which can andwill expose the Courts to indignity, scandal and odium. Such amounts to abuse of the Court process, or of the judicial process. See the case of Ogboru & Anor VsUduaghan & Ors (2013) LPELR - 20805 SC; Igbeke Vs Okadigbo & Ors (2013) LPELR - 20664 SC.In the case of Onwuneme & Anor Vs Customary Court Mbawsi & Ors (2018) LPELR - 44474, this Court relied on the Supreme Court decision in Globe MotorsHoldings Ltd Vs Honda Motor Co. Ltd (1998)5 NWLR (Pt. 550) 373 at 381 to state an instance of above of judicial or Court process:"An instance of such (abuse)... is in the form of vexatious and oppressive actions... when an action is instituted deliberately to circumvent the cause of Justice and to bringthe Judicial Process into ridicule and contempt... Any action or course of conduct that is seen or designed to introduce anarchy into the judicial system must be dealt with,appropriately."In Arubo Vs Aiyeleru (1993) 3 NWLR (Pt. 280) 125, the Supreme Court held that:"Once a Court is satisfied that the proceeding before it amounts to an abuse of process, it has the right, in fact, the duty to invoke its coercive powers to punish the partywhich is in abuse of its process. Quite often, that power is exercised by the dismissal of the action which constitutes the abuse."See also Dingyadi & Anor Vs INEC & Ors (2010) LPELR 952 (SC); and Allanah and Ors Vs Kpolokwu & Ors (2016) LPELR 40724 (SC), where the Supreme Courtreiterated the common particulars or feature of abuse of the Court process, thus:"To my mind, some of the features of abuse of Court process include the under mentioned features, even though they are; by no means, exhaustive:(i) Filing of multiplicity of actions on the same subject matter against the same opponents onthe same issues, or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action.(ii) Institute different actions between the same parties, simultaneously, in different Courts even though on different grounds(iii) Where two or more similar, processes are used in respect of the exercise of the same right, for instance, a cross appeal and a respondent's notice(iv) Where two actions are instituted in Court the second one asking for relief which may however be obtained in the first, the second action is, prima face vaxacious and anabuse of Court process.See the case of Okorocha Vs PDP (2014) 7 NWLR (Pt. 406) 213; Saraki Vs Kotoye (1992) 9 NWLR (Pt. 264) 156; Ogoejiofor Vs Ogoejiofor (2006)3 NWLR (Pt. 996) 206." PerSanusi JSC.Appellant did not even contest the fact that it filed appeal No.HUM/1A/2014 at the State High Court, to contest the decision of the 1st Respondent in UMC/TPA/04/2014. Evenwhen the 2nd Respondent clearly stated the facts and produced the particulars of the Appeal (Exhibits AA and BB) in paragraph 16 of the Counter affidavit, all that theAppellant could reply was an evasive, blanket denial, thus:"That I have seen and studied the counter Affidavit deposed toby one TPL Okezie Ahuruonye, dated 16th February, 2015 and I filed in this honourable Court, on the samedate, and I vehemently state, that the following paragraphs are false and tissues of lies, to wit, paragraphs 5,6,7,8,9,10,11,12,13,14,15,16 and 17 are all denied."See page 225 of the Records.Appellant's Counsel, on page 299 of the Records, had opportunity to state the facts, correctly, and to lead the Court properly, on the existence of the Appeal No.HUM/1A/2014, but he woefully failed in his duty to his client and to the Court when he rather elected to prevaricate on the issue by saying:"There is nothing before this Court to show that an appeal is pending anywhere", and that even if that is the case, this Court, having exercised its discretion to grant leaveto the Applicant to apply for an order of certiorari, it should proceed to determine the application before it."That, in my view, was disingenuous, as it would have been in the best interest of the Appellant to admit the obvious, and accept the suggestion of the 2nd Respondent'sCounsel, to adjourn the Suit, sine die, pending the determination of Appeal No. HUM/1A/2014, and I do not think Appellant stood to lose anything by so doing.I agree with the learned 2nd Respondent's Counsel, that even if the Exhibits AA and BB were to be wrongly applied in this case (which is not conceded), the fact that theexistence of the Appeal was not denied, the trial Court had the right to act on that fact, disclosed in paragraph 16 of the Counter affidavit, which was not denied.The law is that a relevant fact, disclosed in an affidavit, which is not rebutted or traversed, is deemed to be admitted by the adverse party. See Ugwuanyi Vs NICON INS. PLC(2013)11 NWLR (Pt. 1366) 546, held 24:"Depositions in affidavits, which are not specially traversed, are deemed as accepted and unchallenged facts, and the Court can act on them. In this case, the appellant didnot specifically traverse the deposition in the respondent's affidavit that it is the same person as the National Insurance Corporation of Nigeria, created under the NationalInsurance Corporation of Nigeria Act, Cap. 263, Laws of the Federation of Nigeria, 1990. In the circumstance, the Court was right when it acted on the respondent'sdeposition."See also Oredola Okeya Trading Co. & Anor. Vs Bank of Credit & Commerce International & Anor. (2014) LPELR - 22011 (SC):"It is trite as well, that any averment in affidavit which has not been categorically denied or controverted, is deemed to be admitted by the opponent.See A.G. Ondo State Vs A.G. Ekiti State (2001)17 NWLR (PT.743) 706; Ajomale Vs Yaduat (No.2) (1991)5 NWLR (Pt.191) 266; Magnusson Vs Koiki (1993)9 NWLR (Pt.317)287.It is also to be noted, that Appellant was insisting that the documents (Exhibits AA & BB) should have been tendered in their original copies or certified true copies bythe 2nd Respondent, for them to be admissible, being public documents, under Section 90 (1) and 105 of the Evidence Act, 2011.Appellant appeared to have forgotten that the matter at the lower Court was fought on affidavit evidence, being a case of Judicial Review for order of certiorari, and that the2nd Respondent was also a party to the Appeal No.HUM/1A/2014, where-of the Exhibits AA and BB (which were filed by Appellant herein, in the Appeal No.HUM/1A/2014)were served on them. Of course, the 2nd Respondent had every right, in law, to make copies of the said processes, served on it and attach same to support its deposition,that Appellant herein, was also on appeal in Appeal No.HUM/1A/2014, against the decision of the 1st Respondent in Suit No.UMC/TPA/04/2014. To demand that theprocesses in Exhibits AA and BB should be in their original copies, or certified true copies,appears ridiculous and wanting in basic legal knowledge, to me, as that demand isimpossible or highly improbable. If 2nd Respondent was served a copy, each, of the documents (Exhibits AA and BB), it could only duplicate or replicate them byphotocopying same, for the purpose of the counter affidavit. It (2nd Respondent) was not expected to take the photocopies to the Court that issued the original copy, forcertification, before attaching them to the counter affidavit (That appears to be what Appellant was demanding in this case!). In the case of British American Tobacco Nig.Ltd Vs International Tobacco Co. Plc (2012) LPELR-14057, (2013) 2 NWLR (Pt.1339) 493, this Court reasoned over such issue, and held:"...public documents, exhibited as secondary copies in affidavit evidence, cannot, necessarily, be certified true copies, and that a document, exhibited to an affidavit, isalready an exhibit before the Court, being part of the affidavit evidence which a Court is entitled to look at, and use. See the unreported decision of this Court in the case ofIlorin East LG Vs Alh. Woli Alasinrin & Anor ... wherein it we stated:I do not think the issue of certification of a secondary evidence (photocopy) as in Exhibit C, can arise in this case, being one fraught on affidavit evidence, and theRespondents not claiming to have obtained it from the Appellant lawfully ... I have already held that the document attached to or exhibited with affidavit, forms part of theevidence adduced by the deponent and is deemed to be properly before the Court to be used, once the Court is satisfied and it is credible. Being already an evidence beforethe Court (on oath), the formality of certification for admissibility, (if it required certification) had been dispensed with. Of course, the reason for this is easy to deduce, thefirst being that affidavit evidence is already an admitted evidence before the Court, unlike pleading, which must be converted to evidence at the trial, at which time issuesof admissibility of an exhibit is decided.The second point is that an exhibited copy of a document, attached to an affidavit evidence, must necessarily be a photocopy or secondary copy (except where thedocument was executed in several parts or counter parts and the deponent has many of the parts to exhibit in the original forms). It is therefore unthinkable to expect theexhibited photocopy to be certified by the adverse party before the Court can attach probative value to it... For the purpose of this application, Exhibits WO1, WO2 and WO3must certainly be photocopies, and cannot be expected to be certified true copies, since the Applicant was expected to photocopy the originals of those documents given tothem by the issuing registry, as exhibited copies for the application."Of course, Exhibits AA and BB in the instant case, are in the category of the Exhibits WO1 - WO3 in the case, cited above. See also the case of Suburban Broad-band LtdNigeria Vs Intelsat Global Sales and Marketing Ltd (2016)LPELR - 400334 (CA).In the Supreme Court case of Owuru & Anor Vs Adigwu & Anor (2017) LPELR-42763 SC it was held:"The suit at the trial Court was instituted by way of originating summons with affidavit in support and in opposition thereto. Documents were attached to the affidavits andmarked as Exhibits. In action commenced by originating summons, the affidavit evidence takes the place of pleadings. The averments are on oath and are of the samevalue as a witness statement on oath, front loaded in a suit commenced by writ of summons in which pleadings are filed. The counter-affidavit serves as a statement ofdefence. Thus, every material averment in any affidavit filed in respect of an originating summons must be specifically denied by the adverse party, otherwise theaverments will stand unchallenged and will be deemed admitted. See Inakoju Vs Adeleke (2007)4 NWLR (Pt.1025)427 at 684 - 685... Similarly, where there are averments ina counter affidavit asserting a particular state of affairs which are not challenged by a further affidavit, such averments will be deemed admitted."Per Kekere-Ekun JSC.That, I think, determines the fate of this appeal. The case, at the Court below, being one for Judicial Review, for order of certiorari, was fraught on affidavit evidence. TheCounter-affidavit evidence clearly disclosed that Appellant, at the time of seeking the order in FHC/UM/M/06/2015, to quash the decision of the 1st Respondent in SuitNo.UMC/TPA/04/2014, for want of jurisdiction, was also appealing against the said judgment of the 1st Respondent at the Abia State High Court, seeking the same relief - toset aside the said decision of the 1st Respondent, for want of jurisdiction. The Suit No. FHC/UM/M/06/2015 was, therefore an abuse of the Court process.I hold agreeing with the Court below, that the Suit for Judicial Review was an abuse of the Court process. I therefore resolve the issue against the Appellant and dismiss thisAppeal."Per MBABA, J.C.A. (Pp. 23-34, Paras. B-E) - read in context

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4. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES): What constitutes abuse of Court process"I have had the privilege of reading in draft the judgment just delivered by my learned brother Hon. Justice Ita George Mbaba JCA, and I am in complete agreement with hisreasoning and conclusion therein. I can only add a few words of mine. The facts, reliefs and issues in this appeal have been security set out and meticulously marshaled out.I need not therefore bother touching them.Suffice it to say that the appeal deals principally with abuse of judicial process on which my few comments will be based. Therefore, if I may ask, what is abuse of Court orjudicial process?The Supreme Court in the case of ALLANAH & Ors. Vs. Kpolokwu & Ors. (2016) LPELR - 40724 (sc) at pages 13 - 14 para c has this to say in respect of abuse of court/judicialprocess:"The common feature of abuse of process of Court centres on improper use of judicial process by a party in litigation aimed or targeting an interference with dueadministration of justice. To my mind some of the features of abuse of Court process include the under mentioned features, even though they are by no means exhaustive.These features are (i) filing of multiplicity of actions on the same subject matter against the same on the same issues or numerous actions on the same matter between thesame parties even where there is in existence a right to commence the action.ii. Instituting different actions between the same parties simultaneously in different Courts even though on different grounds. (iii) where two or more similar processes areused in respect of the exercise of the same right, for instance a cross appeal and respondent's notice (iv) where two actions are instituted in Court, the second one askingfor relief which may however be obtained in the first, the second action is prima facie vexatious and an abuse of Court process. See cases or OKOROCHA VS. PDP (2014) 7NWLR (Pt. 4406) 213; SARAKI VS. KOTOYE (1992) 9 NWLR (Pt. 204) 156; OGOEJEOFO VS. OGOEJEOFO (2006) 3 NWLR (Pt. 1996) 206." The actions of the appellant in theinstant case qualifies for the definition of the abuse of Court process listed above. This to me, is reprehensible, particularly, coming from a legal practitioner.The good thing about this abuse of Court process is that the Court has an inherent power to ward off the abuse of its processes. See OGBORU & ANR VS UDUAGHAN & ORS(2013) LPELR - 20805 (SC) page 22 para B - C where it was held thus:-"The power of the Court to ward off an abuse of process is inherent for it to exercise for purpose of maintaining its sanctity and dignity. See PAPERSACK (NIG) LTD VS.ODUTOLA (2011) 10 NWLR (Pt. 1255) 244 at 250."Per ANDENYANGTSO, J.C.A. (Pp. 35-37, Paras. B-C) - read in context

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ITA GEORGE MBABA, J.C.A. (Delivering the Leading

Judgment): This appeal emanated from the decision of the

F e d e r a l H i g h C o u r t , U m u a h i a , i n S u i t N o .

FHC/UN/M/06/2015, delivered on 28/10/2015 by Hon.

Justice F.A. Olubanjo, wherein the learned trial Judge held,

upholding the prayer of the 2nd Respondent, that the Suit

by Applicant was an abuse of Court process, a claim for

judicial review.

Appellant, as Applicant at the Lower Court, had obtained

an ex-parte order granting it leave to apply for judicial

Review, to wit:

"An order of certiorari to remove the proceedings,

decisions, judgments, or orders of His Worship Ochea

Kalu Onwuka Esq (Learned Senior Margistrate Grade

1) sitting at Umunneochi Magistrate District,

Nkwuagu, Isuochi, Abia State, made on 4th November

2014 in Suit No.UMC/IPA/04/2013, (sic) Between:

Umunneochi Town Planning Authority Vs Asphalt

Unity Construction Ltd., to this Honourable Court for

the purpose of it being quashed, same having been

made without jurisdiction by the Learned Magistrate.

2) That granting of leave as above by this Honourable

Court shall operate as a stay of all

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actions or matters relating to, or connected with the

Applicant, until the determination of the application

or until the Court or judge otherwise orders, or

3) An interim order enjoining and or restraining the

Respondents…"

Upon being granted the Exparte Order, Appellant filed a

motion on Notice on 5/2/2015, claiming as follows:

(See pages 106 – 109 of the Records of Appeal)

(a) A DECLARATION that by the combined provisions

of Section 251(1)(N) and Second Schedule Part 1,

item 39 of the 1999 Constitution of the Federal

Republic of Nigeria and Sections 1(1), (2), (3), 141

AND 142 OF NIGERIAN MINERALS AND MINING

ACT, 2007, the Federal High Court of Nigeria is the

only Court conferred with Exclusive Jurisdiction to

determine or hear or adjudicate in all Civil Cause and

Matters relating to Mines and Minerals (including the

establishment, regulation and operation of Quarries)

in Nigeria.

(b) A DECLARATION that by the combined provisions

of Section 251(1)(N) and Second Schedule Part 1,

item 39 of the 1999 Constitution of the Federal

Republic of Nigeria and Sections 1(1), (2), (3), 141

AND 142 OF NIGERIAN MINERALS AND MINING

ACT,

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2007, the 2nd Respondent herein not being an

establishment or an arm or a Parastatal of the

Federal Government of Nigeria empowered do so, that

is, the Mining Cadastre, lacks the power or

competence in all respect to grant, permit, approve

and or regulate the establishment of Quarries

anywhere in Nigeria including Abia State.

(c) A DECLARATION that by the combined provisions

of Section 251(1)(N) and Section Schedule Part 1,

item 39 of the 1999 Constitution of the Federal

Republic of Nigeria and Sections 1(1), (2), (3), 141

AND 142 OF NIGERIAN MINERIAL AND MINING

ACT, 2007, HIS WORSHIP OCHEA. KALU ONWUKA,

ESQ. (LEARNED SENIOR MAGISTRATE GRADE 1),

the 1st Respondent herein, sitting at Umunneochi

Magistrate District Nkwoagu, Isuochi, Abia State,

lacked Jurisdiction and competence to hear,

determine and or adjudicate over Civil Causes and

Matters relating to Mines and Minerals (including the

establishment, regulation and operation of Quarries)

in Nigeria and as a consequence the order made by

the 1st Respondent on 4th November, 2014 in Suit

No.UMC/TPA/04/2013, (sic) Between; UMUNNEOCHI

TOWN PLANNING AUTHORITY V. ASPHALT UNITY

CONSTRUCTION LIMITED, is

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unconstitutional, illegal, null, and void and of no

effect whatsoever.

(d) A DECLARATION that the order Sealing the

Applicant’s Quarry Sites situate and lying at

Lokpaukwu in Umunneochi Local Government Area,

of Abia State, Nigeria, “for not obtaining the approval

of the 2nd Respondent herein, to operate a Quarry”

made by HIS WORSHIP OCHEA. KALU ONWUKA,

ESQ. (LEADERSHIP SENIOR MAGISTRATE GRADE 1),

(the 1st Respondent herein) on 4th November, 2014

in Suit No.UMC/TPA/04/2013, (sic) Between;

UMUNNEOCHI TOWN PLANNING AUTHORITY V.

ASPHALT UNITY CONSTRUCTION LIMITED, is

unconstitutional, illegal, null, and void and of no

effect whatsoever and a violation of the Constitution

of the Federal Republic of Nigeria 1999 (as amended).

(e) An Order of Certiorari removing the proceedings,

decisions, judgments, or orders of HIS WORSHIP

OCHE. KALU ONWUKA, ESQ. (LEARNED SENIOR

MAGISTRATE GRADE 1), sitting at Umunneochi

Magisterial District Nkwoagu, Isuochi, Abia State and

made on 4th November , 2014 in Sui t No .

UMC/TPC/04/2013, (sic) Between; UMUNNEOCHI

TOWN PLAINNING AUTHORITY V. ASHPALT UNITY

CONSTRUCTION LIMITED, by which the Applicant’s

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Quarry Sites were Ordered Sealed “for not obtaining

the approval of the 2nd Respondent herein, to operate

a Quarry” into this Honourable Court for the purpose

of it being quashed, same having being (sic) made

without jurisdiction by the learned Magistrate.

(f) An Order of this Honourable Court/Certiorari

quashing all the Proceedings, Decisions, Rulings,

Judgments, or Orders of HIS WORSHIP OCHEA. KALU

ONWUKA, ESQ. (LEARNED SENIOR MAGISTRATE

GRADE 1) (1st Respondent herein) sitting at

Umunnochi Magistrate District Nkwoagu, Isuochi,

Abia State and made on 4th November, 2014 in Suit

No. UMC/TPC/04/2013, (sic) Between; UMUNNEOCHI

TOWN PLANNING AUTHORITY V. ASPHALT UNITY

CONSTRUCTION LIMITED, same having being made

without jurisdiction by the learned Magistrate and for

being unconstitutional, illegal, null, and void of no

effect whatsoever and a violation of the Constitution

of the Federal Republic of Nigeria 1999 (as amended).

(g) An Order of Perpetual injunction restraining all

the Respondents herein whether by themselves or

their officials, privies, lackeys, agents or other

representatives whomsoever acting for them and or

on their behalf from

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taking any step to actualize or giving effect, credence

or fillip to the aforesaid order made by HIS WORSHIP

OCHEA. KALU ONWUKA ESQ. (LEARNED SENIOR

MAGISTRATE GRADE 1), (the 1st Respondent herein)

on 4th November, 2014 in Suit No. UMC/TPC/04/2013,

( s i c ) B e t w e e n ; U M U N N E O C H I T O W N

PLANNING AUTHORITY V. ASPHALT UNITY

CONSTRUCTION LIMITED, sealing the Quarry

Sit/Premises of the Applicant herein, same having

being (sic) made without jurisdiction, whatsoever.

(h) And for such further order or orders as this

Honourable Court may deem fit to make in the

circumstances.

The motion was supported by affidavit of 32 paragraphs,

with Exhibits and a statement, pursuant to Order 34 Rules

(2) (a) and (b) of the Federal High Court Rules, 2009, which

carried facts, verified by the supporting affidavit, as well as

an affidavit of urgency. After, hearing the arguments of

counsel and considering their written addresses, the trial

Court held against the Applicant and dismissed the Suit No.

FHC/UM/M/06/15 and set aside the order of stay granted at

the stage of the Exparte application/Order:

It said:

“Having thus found and held that this suit is an abuse

of

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Court process, there is no further need to delve into

the other issues outlined for determination by learned

Counsel for the parties. Mr. Ogu has urged this Court

to strike out instant suit in the event that it finds it to

be an abuse of Court process. I am however of the

view, based on the decisions in Arubo Vs Aiyeleru

(1993) 3 NWLR (Pt. 289) P.128 at 142; Ojo & 3 Ors

Vs Olawore & 5 Ors (2008) 6 – 7 SC (Pt. II) P. 54, that

an order of dismissal is more appropriate in these

circumstances.

(See page 305 of the Records).

Dissatisfied, Appellant brought this appeal, as per the

Notice of Appeal on pages 307 – 311 of the Records of

Appeal, filed on 13/11/2015, disclosing 2 grounds of

Appeal. Appellant formulated a sole issue for the

determination for the Appeal:

“Whether under Section 90 (1) of the Evidence Act,

2011, when secondary evidence of public documents

are sought to be tendered in evidence in Court,

photocopies of such public documents are

admissible? OR

Put succinctly, whether Exhibits A.A. and BB, which

are mere photocopies of public documents, attached

to the 2nd Respondent’s Counter

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affidavit, filed on 16th February 2015 before the

lower Court, are admissible under Section 90(1) (c) of

the Evidence Act 2011."

The 2nd Respondent filed its brief on 15/11/2017, which

was deemed duly filed on 15/5/2018, wherein it adopted the

lone issue for determination as distilled by the Appellant.

Appellant filed a Reply Brief on 1/3/18 which was also

deemed duly filed on 15/5/18.

The other Respondents filed no brief, and when this appeal

was heard on 24/10/18, there was evidence that the 1st and

3rd Respondents were served with the processes and were

aware of the hearing, but failed to show up.

Arguing the lone issue, Counsel for the Appellant, P.G.C.

Achigasim Esq., (who settled the brief) faulted the holding

of the trial Court on pages 302 to 306 of the Records of

Appeal, when it held that it had carefully considered the

2nd Respondent’s Exhibits A.A and BB – copies of Court

processes attached to 2nd Respondent’s Counter-affidavit –

that the same disclosed Appeal against the Ruling of the

Senior Magistrate, delivered on 4/11/14, to the High Abia

State Court; that Appellant in that Appeal (Exhibits A.A.

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& BB) is the Applicant in the instant suit, and the Learned

Senior Magistrate, whose decision was appealed in Exhibits

AA & BB, is the 1st Respondent in the instant suit; that the

3rd Respondent in the instant suit, is a mere nominal party,

and so needed not have been a party in the Appeal No.

HUM/1A/2014 (Exhibits AA & BB), before the trial lower

Court could appreciate the fact that the parties to the

instant case and to the Appeal No.HUM/1A/2014,

were essentially, the same, and that the subject matter in

both cases was the Ruling of 1st Respondent, delivered on

4/11/14; that the Appeal had been entered at the Abia State

High Court (as shown in the Appeal No.HUM/1A/2014),

written on the cover of the Records of Appeal (Exhibit BB);

and that reading through the Notice and grounds of Appeal

(Exhibit AA), it was obvious that the relief sought from the

Appellate Court was:

"To allow the appeal and set aside the Ruling of the

Chief Magistrates (sic) Court, Nkwoagu, Umunneochi

Local Government Area of Abia State delivered on 4th

day of November, 2914, against the Defendant."

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The trial Court further said that the above was the same as

the Reliefs (e) and (f) in the instant Motion on Notice,

which sought, inter alia, for Orders “quashing of the

proceedings, decisions, rulings, judgments or orders

of…”the 1st Respondent”; that, in the Appeal, the issue

to be canvassed, included whether mining and quarry

operations were exclusive preserve of the National

Assembly, and that Abia State House of Assembly had no

power to legislate on such matters; and the same were the

issues in the instant suit. Thus, the issues involved in the

Appeal, and in the instant application, were the same,

substantially; that the Application for Judicial Review,

therefore, amounted to abuse of the Court process, arising

from the multiple actions between the same parties on the

same subject matter.

Counsel said the issue for determination was whether the

trial Court was right to admit and rely on Exhibits AA

and BB, which were mere photo-copies attached to

the 2nd Respondent’s Counter Affidavit filed on

16/2/15 before the lower Court, to arrive at the

conclusion, reached, considering Section 90 (1) (c) of

the Evidence Act, 2011?

He answered in the negative.

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He acknowledged that 2nd Respondent’s contention was

that, at the trial Court Appellant herein had filed appeal

against the ruling of the Magistrates Court (1st

Respondent), at the State High Court and therefore,

Appellant’s application for Judicial Review, was an abuse of

Court Process, that in proof of the contention, 2nd

Respondent attached the said Exhibits AA & BB!

Counsel for Appellant argued that the said Exhibits AA &

BB were photocopies of public documents, and so were

wrongly admitted and relied upon; that they should have

been certified true copies. He relied on Sections 90 (1) (c)

and 105 of the Evidence Act, 2011, and said that the

decision of the trial Court was perverse; that a decision is

perverse, where it does not draw from the evidence on

record and/or where the Court wrongly applied legal

principles to correctly ascertained facts and by so doing,

occasion injustice. He relied on Queen Vs Ogodo (1961)2

SC 366; Mogaji Vs Odofin (1978)4 SC 91; Ebba Vs

Ogodo (1984)4 SC 71, Elendu Vs INEC &Ors (2015)

SC 1 at 24.

Counsel argued that, if the trial Court had paid even a

fleeting attention to the list of cases which the Applicant

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intended to cite, in oral adumbration of his application, as

stated on pages 282 – 283 of the Records of Appeal, which

indicated he would stoutly oppose the admissibility of

Exhibits AA and BB, the lower Court would have avoided

the perverse decision, according to him. He urged us to

resolve the issue for Appellant and relied on the case of

Osuji Vs Ekeocha (2009) All FWLR (Pt. 490) 614 SC,

where it was held that:

“A decision of a Court is perverse, where it is

speculative and not based on any evidence; or where

the Court took into account matters which it ought

not to have taken into account; or where the Court

shuts its eyes to the obvious.”

Counsel added that the general principle of law, as to

admissibility of evidence, is that the only admissible

evidence of a public document is either the original or a

certified copy, thereof; that no other evidence, like

photocopy thereof is admissible. He relied onOgbu Vs Ani

(1994) 7-8 SCNJ (Pt. 11) 363, Minister of Lands,

Western Region Vs Azikiwe (1969)1 All NLR 49 at 59

SC; Okoh Vs Igwesi (2005) All FWLR (Pt. 264) 891 CA.

Giwa Vs Yarbun (2011) All FWLR (Pt. 565) 254 CA;

Kwara State

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Water Corp. Vs AIC (Nigeria) Ltd (2009) ALL FWLR

(Pt. 485) 1738 CA. He also relied on the Text Book –

S.T. Hon’s Law of Evidence (2nd Edition) (Vol.1) at

page 975 and Araka Vs Egbue (2003)7 SC 75 at 82.

The 2nd Respondent’s Counsel, Bob. C. Ogu Esq., observed,

by way of a preliminary issue, that the lone issue raised by

the Appellant, (complaint that Exhibits AA and BB were

wrongly admitted and used) was not canvassed at the lower

Court in the address of Appellant, and so was a fresh issue;

he referred us to the case of F.J.S.C. Vs Thomas (2013)7

NWLR (Pt. 1384) 503 on fresh issue and how to raise it;

that a fresh issue cannot be convassed on appeal, without

the leave of the appellate Court. He relied on the case Uzo

Vs Nnalimo (2000)11 NWLR (Pt. 678) 237, where the

Supreme Court said:

“A party cannot, without leave of the Court of Appeal,

raise a fresh issue not dealt with in the trial Court.

Similarly, a matter not raised in the pleadings at the

trial Court and not adverted to in the Court of Appeal,

cannot be raised in the Supreme Court. If leave is

sought to raise such an issue, it (the issue) must be of

such nature

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that it was not available for canvassing in the trial

Court or the Court of Appeal, as the case may be, not

through negligence… Whichever is the position, there

is the requirement of leave, and since none was

sought for and obtained, the affected issue goes to no

issue.”

See also Agwaraugbo Vs Nakande (2000)9 NWLR (Pt.

672) 341. Counsel urged us to strike out the issue as there

was/is no leave to argue it.

Arguing the merits of the appeal, the 2nd Respondent’s

Counsel noted that the evidence at the lower Court was

affidavit evidence and the documents, complained against,

were exhibited to the Counter-Affidavit of the 2nd

Respondent in opposition of the Suit of the Applicant (now

Appellant). Counsel referred us to paragraph 16 of the

Counter Affidavit (page 205 of the Records) where it was

averred:

“That I know as a fact that the Applicant filed an

appeal against the ruling of the Learned trial

Magistrate in HUM/1A/2014 (Asphalt Unity

Construction Company Ltd Vs Umunneochi Town

Planning Authority) which is pending at the Abia

State High Court, Umunneochi. The Photocopies of

the pending appeal, the Notice of Appeal are herein

attached as Exhibits AA and BB."

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Counsel submitted that Appellant did not, categorically,

deny that averment, and was not saying that the deposition

offended the rules of affidavit evidence. Rather, that

Appellant claimed that the exhibits were in admissible, as

they were not certified true copies.

Counsel said it was obvious, from the attitude of the

Appellant, that the averment was in order, and the Court

could rely on it to make its findings of fact, even if the

documents were not exhibited; that the Exhibits were mere

surplusage! Counsel relied on the case of Ugwuanyi Vs

NICON Ins. Plc (2013)11 NWLR (Pt. 1366) 546 ratio

24, where the Supreme Court said:

“Depositions in affidavits, which are not specially

traversed, are deemed as accepted and unchallenged

facts, and the Court can act on them. In this case, the

appellant did not specifically traverse the deposition

in the respondent’s affidavit, that it is the same

person as the National Insurance Corporation of

Nigeria, created under the National Insurance

Corporation of Nigeria Act, Cap. 263, Laws of the

Federation of Nigeria, 1990. In the circumstance,

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the Court was right when it acted on the respondent’s

deposition.”

Thus, Counsel said, assuming (without conceding) that

Exhibits AA & BB were inadmissible, that the lower Court

was still right to act on the deposition in the Counter

affidavit, having not been categorically denied.

Counsel further submitted that the case was fraught on

affidavit evidence; that the test of admissibility of a public

document, not certified but attached as an exhibit to an

affidavit, is different from the regular process of admitting

a public document; that whether or not a Court would

permit a public document not certified to be used in a

motion or application, would depend on the purpose sought

to be achieved in exposing to the Court the exhibit annexed

to the affidavit Court; that the lower Court was right in

acting on the Exhibits AA & BB. He relied on the cause of

Hassan Vs EFCC (2011)1 NWLR (Pt. 1389) 607 at 634

– 635.

He urged us to resolve the issue against Appellant and to

dismiss the appeal.

In his Reply Brief, Counsel for the Appellant urged us to

discard the Preliminary Issue raised by the 2nd

Respondent, since the

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Respondent did not file any preliminary objection to the

appeal, to entitle him to raise and argue the said

preliminary issue. Counsel further stated that the issue was

not a new or fresh issue; that the issue was canvassed at

the Court below, and referred us to paragraph 3.2 of the

2nd Respondent’s Brief, where he admitted that the issue

was actually canvassed in the Court below in form of

adumbration/submission at the hearing of the Suit (Page,

276 of the Records).

Counsel added that, if a document is improperly received in

evidence, that an appellate Court has inherent jurisdiction

to exclude and discountenance the document, even though

Counsel, at the trial Court, did not object to its going into

evidence. He relied on Ipinlaiye Vs Olukotun (1996) 6

SCNJ 74. He also relied on Odom &Ors Vs PDP & Ors

(2015) 2 SC (Pt. 1)1 at 19, to say that the lower Court is

under obligation to discountenance photo copies of Public

documents, which are not certified, whether or not there is

objection to the admission; and that appellate Court will set

aside a decision arrived at with such inadmissible evidence;

that a Court can only act on evidence that is legally

admissible.

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RESOLUTION OF THE ISSUE

I do not think the Respondent’s "Preliminary issue" is

worth considering in detail, as it is obvious, learned

Counsel for the Respondent, in his argument, even

admitted that Appellant had canvassed the issue of the

admissibility of the Exhibits AA and BB at the trial Court,

during his adumbration, as per page 276 of the Records of

Appeal.

See paragraph 3.2 of the 2nd Respondents’ Brief, where

Counsel said:

“It was only during oral adumbration that the

Applicant tried to smuggle it in when he stated …”

and this exhibit titled AA and BB are not helpful at

all. They are merely papers worthless and not

certified true copies of document which they are

supposed to be.” The lower Court never took notice of

the said submission as the said submission was dead

on arrival, having not been canvassed in the written

addresses. This is a classical example of canvassing a

new issue on appeal.”

I do not, therefore agree with the 2nd Respondent, that the

lone issue for the determination of this appeal is a fresh

issue, requiring the leave of this

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Court to raise and argue and that it was not canvassed at

the Court below. Being a point of law, I think it was duly

canvassed in Appellant’s address at the Court below, albeit

at the point of adumbration, and documented in the

Records of Appeal as part of Applicant’s address. A point

already raised and discussed at the trial Court, in my view,

remains part of the proceeding at the trial, and an issue

raised therefrom on appeal cannot be termed new or fresh

issue. See the case of Chike Vs Nosike (2017) LPELR –

42618 (CA) & Salisu & Anor Vs Mobolaji & Anor

(2013) LPELR – 22019 SC on guide, as to when a fresh

issue arises in Appeal, and how to raise it.

A brief fact of the case at the lower Court shows as follows:

(a) Applicant (Appellant herein) was licenced by the

Mining Cadastre in accordance with the Nigeria

Minerals and Mining Act, 2007, to operate a quarry

located in Eziama and Eluama in Umuchieze in

Umunneochi Local Government Area, Abia State.

(b) The 2nd Respondent, is an Agency created by Abia

State Urban and Regional Planning Board and

Planning Authorities Law to control development in

the Local Government where Appellant has its quarry

site.

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(c) The 1st Respondent, a Senior Magistrate Grade 1,

sitting in Umunneochi Local Government Area.

(d) That sometime in 2014, the 2nd Respondent,

commenced a quas i - c r im ina l Summons

No/UMC/TPA/04/2014, brought against Appellant for

operating the quarry site without 2nd Respondent’s

Approval. The 2nd Respondent also sought order of

the Learned Magistrate to seal up the Appellant’s

quarry sites…

e) The 1st Respondent delivered his ruling and sealed

up Appellant’s quarry sites.

f) Being dissatisfied, Appellant file appeal against

that decision to the High Court of Abia State in

HUM/1A/2014.

g) Appellant also filed this suit at the lower Court

which resulted in this appeal, (that is, Suit

No.FHC/UM/M/06/2015) seeking to quash the

decision of the 1st Respondent, by way of Judicial

Review.

h ) T h e L o w e r C o u r t , i n t h e S u i t N o .

FHC/UM/M/06/2015, delivered its ruling on

28/10/2015, dismissing the suit, for being abuse of

the Court process, on the grounds that the appeal

lodged at the Abia State High Court in HUM/1A/2014

against the decision of the 1st Respondent

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(as per Exhibits AA and BB) was still pending, and

had sought the same reliefs in the Suit No.

FHC/UM/M/06/2015.

Apparently, the lower Court did not consider the merits of

the application for the Judicial Review, that is, the real

issues raised in the Suit as to the jurisdiction of the 2nd

and 1st Respondents, to take out and adjudicate on the Suit

No. UMC/TPA/04/2014, respectively, and whether the same

merited a judicial review, for order of certiorari to quash

the decision. The lower Court had concerned itself with the

issue of abuse of the Court process, raised by the 2nd

Respondent's Counsel, by way of preliminary objection. On

pages 298 � 299 of the Records, the lower Court said:

"I have carefully considered this application for

judicial review and the opposition thereto. Before I

proceed to consider the other issues formulated for

determination by Counsel for the parties, it is

necessary to examine Mr. Ogu's "Preliminary issue"at

page 1.3 and 1.4 of his written address) and his

second issue for determination (at paragraph 3.0 of

his Written Address). That preliminary issue is to the

effect that since the 1st

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Respondent’s Ruling, delivered on 4/11/14 can be

challenged by way of either an appeal or certiorari

proceedings, this Court ought not to have granted the

Applicant leave to apply for Judicial Review, but

should have waited until the time for appealing has

expired or until the appeal has been determined,

before granting such leave. Reliance was placed on

H.C.M Vs Iyoha (2001) Vol. 46 WRN P. 103. Mr. Ogu

was of the view that this application should be

adjourned sine die pending the determination of

appeal No. HUM/1A/2014 Between ASPHALT UNITY

CONSTRUCTION COMPANY LTD VS UMUNNEOCHI,

TOWN PLANNING AUTHORITY, which is pending at

the Abia State High Court.

Mr. Achigasm, Applicants Learned Counsel, at

paragraph 1.3 of his Reply on Points of Law, dated

19/2/15 was however of the view that the decision

relied upon by the 2nd Respondent’s Counsel is in

applicable to the present matter, having been

determined based on the provisions of the High Court

(Civil Procedure) Rules of Anambra State, which is

different from the Federal High Court (Civil

Procedure) Rules, 2009. He further argued that

“there is nothing before this Court to show

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that an appeal is pending anywhere,� and that, even

if that is the case, this Court, having exercised its

discretion to grant leave to the Applicant to apply for

an order of certiorari, it should proceed to determine

the application before it."

With the above painstaking effort by the learned trial Court

documenting the effort by the 2nd Respondent's Counsel,

to save the day for the Appellant; whether or not to proceed

to the taking of the application for Judicial Review, in the

face of the pending appeal, seeking the same reliefs as

sought by the application for the Judicial Review, I think

the learned trial Judge acted, circumspectly, and properly,

when he opted to determine the preliminary issue, raised

by the 2nd Respondent at the trial.

Of course, there is no ground(s) of appeal, faulting the

entertainment of the preliminary issue by the 2nd

Respondent at the trial Court, as it was obvious Appellant

was pursing two different cases, at two separate Courts of

coordinate jurisdictions, on the same subject matter,

seeking, substantially, the same relief(s), and the parties

were, substantially, the same: that is, the instant

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application, FHC/UM/M/06/2015 (now on appeal) and the

Appeal No. HUM/1A/2014, pending at the Abia State High

Court.

The law frowns seriously against such unwholesome

practice(s) of a party taking out multiple actions in

different Courts (or even in the same Court), over the same

subject matter, concerning the same parties, thereby

exposing the administration of justice to jeopardy, and peril

of confusion and possible conflicts in its decisions, which

can and will expose the Courts to indignity, scandal and

odium. Such amounts to abuse of the Court process, or of

the judicial process. See the case of Ogboru & Anor Vs

Uduaghan & Ors (2013) LPELR – 20805 SC; Igbeke Vs

Okadigbo & Ors (2013) LPELR – 20664 SC.

In the case of Onwuneme & Anor Vs Customary Court

Mbawsi & Ors (2018) LPELR – 44474, this Court relied

on the Supreme Court decision in Globe Motors Holdings

Ltd Vs Honda Motor Co. Ltd (1998)5 NWLR (Pt. 550)

373 at 381 to state an instance of above of judicial or

Court process:

“An instance of such (abuse)… is in the form of

vexatious and oppressive actions… when an action is

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instituted deliberately to circumvent the cause of

Justice and to bring the Judicial Process into ridicule

and contempt… Any action or course of conduct that

is seen or designed to introduce anarchy into the

judicial system must be dealt with, appropriately."

In Arubo Vs Aiyeleru (1993) 3 NWLR (Pt. 280) 125, the

Supreme Court held that:

“Once a Court is satisfied that the proceeding before

it amounts to an abuse of process, it has the right, in

fact, the duty to invoke its coercive powers to punish

the party which is in abuse of its process. Quite often,

that power is exercised by the dismissal of the action

which constitutes the abuse.”

See also Dingyadi & Anor Vs INEC & Ors (2010) LPELR

952 (SC); and Allanah and Ors Vs Kpolokwu & Ors

(2016) LPELR 40724 (SC), where the Supreme Court

reiterated the common particulars or feature of abuse of

the Court process, thus:

“To my mind, some of the features of abuse of Court

process include the under mentioned features, even

though they are; by no means, exhaustive:

(i) Filing of multiplicity of actions on the same

subject matter against the same opponents on

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the same issues, or numerous actions on the same

matter between the same parties even where there is

in existence, a right to commence the action.

(ii) Institute different actions between the same

parties, simultaneously, in different Courts even

though on different grounds

(iii) Where two or more similar, processes are used in

respect of the exercise of the same right, for instance,

a cross appeal and a respondent’s notice

(iv) Where two actions are instituted in Court the

second one asking for relief which may however be

obtained in the first, the second action is, prima face

vaxacious and an abuse of Court process.

See the case of Okorocha Vs PDP (2014) 7 NWLR (Pt.

406) 213; Saraki Vs Kotoye (1992) 9 NWLR (Pt. 204)

156; Ogoejeofo Vs Ogoejeofo (2006)3 NWLR (Pt. 996)

206.” Per Sanusi JSC.

Appellant did not even contest the fact that it filed appeal

No.HUM/1A/2014 at the State High Court, to contest the

decision of the 1st Respondent in UMC/TPA/04/2014. Even

when the 2nd Respondent clearly stated the facts and

produced the particulars of the Appeal (Exhibits AA and

BB) in paragraph 16 of the Counter affidavit, all

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that the Appellant could reply was an evasive, blanket

denial, thus:

“That I have seen and studied the counter Affidavit

deposed toby one TPL Okezie Ahuruonye, dated 16th

February, 2015 and I filed in this honourable Court,

on the same date, and I vehemently state, that the

following paragraphs are false and tissues of lies, to

wit, paragraphs 5,6,7,8,9,10,11,12,13,14,15,16 and 17

are all denied.”

See page 225 of the Records.

Appellant’s Counsel, on page 299 of the Records, had

opportunity to state the facts, correctly, and to lead the

Court properly, on the existence of the Appeal No.

HUM/1A/2014, but he woefully failed in his duty to his

client and to the Court when he rather elected to

prevaricate on the issue by saying:

“There is nothing before this Court to show that an

appeal is pending anywhere”, and that even if that is

the case, this Court, having exercised its discretion to

grant leave to the Applicant to apply for an order of

certiorari, it should proceed to determine the

application before it.”

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That, in my view, was disingenuous, as it would have been

in the best interest of the Appellant to admit the obvious,

and accept the suggestion of the 2nd Respondent’s

Counsel, to adjourn the Suit, sine die, pending the

determination of Appeal No. HUM/1A/2014, and I do not

think Appellant stood to lose anything by so doing.

I agree with the learned 2nd Respondent’s Counsel, that

even if the Exhibits AA and BB were to be wrongly applied

in this case (which is not conceded), the fact that the

existence of the Appeal was not denied, the trial Court had

the right to act on that fact, disclosed in paragraph 16 of

the Counter affidavit, which was not denied.

The law is that a relevant fact, disclosed in an affidavit,

which is not rebutted or traversed, is deemed to be

admitted by the adverse party. See Ugwuanyi Vs NICON

INS. PLC (2013)11 NWLR (Pt. 1366) 546, held 24:

“Depositions in affidavits, which are not specially

traversed, are deemed as accepted and unchallenged

facts, and the Court can act on them. In this case, the

appellant did not specifically traverse the deposition

in the respondent’s affidavit that it is the same

person as the National Insurance Corporation of

Nigeria, created

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under the National Insurance Corporation of Nigeria

Act, Cap. 263, Laws of the Federation of Nigeria,

1990. In the circumstance, the Court was right when

it acted on the respondent’s deposition.”

See also Oredola Okeya Trading Co. & Anor. Vs Bank

of Credit & Commerce International & Anor. (2014)

LPELR – 22011 (SC):

“It is trite as well, that any averment in affidavit

which has not been categorically denied or

controverted, is deemed to be admitted by the

opponent.

See A.G. Ondo State Vs A.G. Ekiti State (2001)17

NWLR (PT.743) 706; Ajomale Vs Yaduat (No.2)

(1999)5 NWLR (Pt.191) 266; Magnusson Vs Koiki

(1993)9 NWLR (Pt.317) 287.

It is also to be noted, that Appellant was insisting that the

documents (Exhibits AA & BB) should have been tendered

in their original copies or certified true copies by the 2nd

Respondent, for them to be admissible, being public

documents, under Section 90 (1) and 105 of the Evidence

Act, 2011.

Appellant appeared to have forgotten that the matter at the

lower Court was fought on affidavit evidence, being a case

of Judicial Review for order of certiorari, and that the 2nd

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R e s p o n d e n t w a s a l s o a p a r t y t o t h e A p p e a l

No.HUM/1A/2014, where-of the Exhibits AA and BB (which

were f i led by Appel lant herein, in the Appeal

No.HUM/1A/2014) were served on them. Of course, the 2nd

Respondent had every right, in law, to make copies of the

said processes, served on it and attach same to support its

deposition, that Appellant herein, was also on appeal in

Appeal No.HUM/1A/2014, against the decision of the 1st

Respondent in Suit No.UMC/TPA/04/2014.

To demand that the processes in Exhibits AA and BB should

be in their original copies, or certified true copies,appears

ridiculous and wanting in basic legal knowledge, to me, as

that demand is impossible or highly improbable. If 2nd

Respondent was served a copy, each, of the documents

(Exhibits AA and BB), it could only duplicate or replicate

them by photocopying same, for the purpose of the counter

affidavit. It (2nd Respondent) was not expected to take the

photocopies to the Court that issued the original copy, for

certification, before attaching them to the counter affidavit

(That appears to be what Appellant was demanding in this

case!).

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In the case of British American Tobacco Nig. Ltd

Vs Internat ional Tobacco Co. P lc (2012)

LPELR-14057, (2013) 2 NWLR (Pt.1339) 493, this

Court reasoned over such issue, and held:

“…public documents, exhibited as secondary copies in

affidavit evidence, cannot, necessarily, be certified

true copies, and that a document, exhibited to an

affidavit, is already an exhibit before the Court, being

part of the affidavit evidence which a Court is entitled

to look at, and use. See the unreported decision of

this Court in the case of Ilorin East LG Vs Alh. Woli

Alasinrin & Anor … wherein it we stated:

I do not think the issue of certification of a secondary

evidence (photocopy) as in Exhibit C, can arise in this

case, being one fraught on affidavit evidence, and the

Respondents not claiming to have obtained it from

the Appellant lawfully … I have already held that the

document attached to or exhibited with affidavit,

forms part of the evidence adduced by the deponent

and is deemed to be properly before the Court to be

used, once the Court is satisfied and it is credible.

Being already an evidence before the Court (on oath),

the formality of certification for admissibility, (if it

required certification) had been dispensed with.

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Of course, the reason for this is easy to deduce, the

first being that affidavit evidence is already an

admitted evidence before the Court, unlike pleading,

which must be converted to evidence at the trial, at

which time issues of admissibility of an exhibit is

decided.

The second point is that an exhibited copy of a

document, attached to an affidavit evidence, must

necessarily be a photocopy or secondary copy (except

where the document was executed in several parts or

counter parts and the deponent has many of the parts

to exhibit in the original forms). It is therefore

unthinkable to expect the exhibited photocopy to be

certified by the adverse party before the Court can

attach probative value to it… For the purpose of this

application, Exhibits WO1, WO2 and WO3 must

certainly be photocopies, and cannot be expected to

be certified true copies, since the Applicant was

expected to photocopy the originals of those

documents given to them by the issuing registry, as

exhibited copies for the application.”

Of course, Exhibits AA and BB in the instant case, are in

the category of the Exhibits

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WO1 – WO3 in the case, cited above. See also the case of

Suburban Broad-band Ltd Nigeria Vs Intelsat Global

Sales and Marketing Ltd (2016)LPELR – 40334 (CA).

In the Supreme Court case of Owuru & Anor Vs Adigwu

& Anor (2017) LPELR-42763 SC it was held:

“The suit at the trial Court was instituted by way of

originating summons with affidavit in support and in

opposition thereto. Documents were attached to the

affidavits and marked as Exhibits. In action

commenced by originating summons, the affidavit

evidence takes the place of pleadings. The averments

are on oath and are of the same value as a witness

statement on oath, front loaded in a suit commenced

by writ of summons in which pleadings are filed. The

counter-affidavit serves as a statement of defence.

Thus, every material averment in any affidavit filed in

respect of an originating summons must be

specifically denied by the adverse party, otherwise the

averments will stand unchallenged and will be

deemed admitted. See Inakoju Vs Adeleke (2007)4

NWLR (Pt.1025)427 at 684 – 685… Similarly, where

there are averments in a counter affidavit asserting a

particular

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state of affairs which are not challenged by a further

affidavit, such averments will be deemed admitted.”

Per Kekere-Ekun JSC.

That, I think, determines the fate of this appeal. The case,

at the Court below, being one for Judicial Review, for order

of certiorari, was fraught on affidavit evidence. The

Counter-affidavit evidence clearly disclosed that Appellant,

at the time of seeking the order in FHC/UM/M/06/2015, to

quash the decision of the 1st Respondent in Suit

No.UMC/TPA/04/2014, for want of jurisdiction, was also

appealing against the said judgment of the 1st Respondent

at the Abia State High Court, seeking the same relief – to

set aside the said decision of the 1st Respondent, for want

of jurisdiction. The Suit No. FHC/UM/M/06/2015 was,

therefore an abuse of the Court process.

I hold agreeing with the Court below, that the Suit for

Judicial Review was an abuse of the Court process.

I therefore resolve the issue against the Appellant and

dismiss this Appeal.

Parties to bear their respective costs.

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THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the

opportunity of reading in advance the judgment of this

Court just delivered by my learned brother, Mbaba, J.C.A.,

and I agree with his reasoning and conclusion therein that

the appeal ought to be dismissed. I too dismiss the same

and I abide by the orders made in the leading judgment.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the

privilege of reading in draft the judgment just delivered by

my learned brother Hon. Justice Ita George Mbaba JCA,

and I am in complete agreement with his reasoning and

conclusion therein. I can only add a few words of mine. The

facts, reliefs and issues in this appeal have been security

set out and meticulously marshaled out. I need not

therefore bother touching them.

Suffice it to say that the appeal deals principally with abuse

of judicial process on which my few comments will be

based. Therefore, if I may ask, what is abuse of Court or

judicial process?

The Supreme Court in the case of ALLANAH & Ors. Vs.

Kpolokwu & Ors. (2016) LPELR — 40724 (sc) at pages

13 — 14 para c has this to say in respect of abuse of

court/judicial process:

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"The common feature of abuse of process of Court

centres on improper use of judicial process by a party

in litigation aimed or targeting an interference with

due administration of justice. To my mind some of the

features of abuse of Court process include the under

mentioned features, even though they are by no

means exhaustive. These features are (i) filing of

multiplicity of actions on the same subject matter

against the same on the same issues or numerous

actions on the same matter between the same parties

even where there is in existence a right to commence

the action.

ii. Instituting different actions between the same

parties simultaneously in different Courts even

though on different grounds. (iii) where two or more

similar processes are used in respect of the exercise

of the same right, for instance a cross appeal and

respondent's notice (iv) where two actions are

instituted in Court, the second one asking for relief

which may however be obtained in the first, the

second action is prima facie vexatious and an abuse of

Court process. See cases or OKOROCHA VS. PDP

(2014) 7 NWLR (Pt. 4406) 213; SARAKI VS. KOTOYE

(1992) 9 NWLR (Pt. 204) 156; OGOEJEOFO VS.

OGOEJEOFO (2006) 3 NWLR (Pt. 1996) 206."

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The actions of the appellant in the instant case qualifies for

the definition of the abuse of Court process listed above.

This to me, is reprehensible, particularly, coming from a

legal practitioner.

The good thing about this abuse of Court process is that the

Court has an inherent power to ward off the abuse of its

processes. See OGBORU & ANR VS UDUAGHAN & ORS

(2013) LPELR - 20805 (SC) page 22 para B - C where it

was held thus:-

"The power of the Court to ward off an abuse of

process is inherent for it to exercise for purpose of

maintaining its sanctity and dignity. See PAPERSACK

(NIG) LTD VS. ODUTOLA (2011) 10 NWLR (Pt. 1255)

244 at 250."

Where it is established that a process constitutes an abuse

of Court process, it is liable to be dismissed. See IGBEKE

VS OKADIGBO & ORS (2013) LPELR - 20664 (SC)

Page 31 paragraph D.

Again it has been held in DINGYADI ANOR VS INEC &

ORS (2011) LPELR- 950 (SC) page 24 paras E-F as

follows: -

This Court (SC) in DINGYADI VS. INEC (No. 2) stated

categorically that abuse of Court is not merely an

irregularity that can be pardoned but constitutes a

fundamental defect the effect of which will lead to dismissal

of the

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process which is abusive. In the case of ARUBO VS

AIYELERU (1993) 3 NWLR (PT. 280) 125, the Supreme

Court took the stand that; "Once a Court is satisfied that

the proceedings before it amount to an abuse of process it

has the right, in fact the duty to invoke its cohesive powers

to punish the party which is in abuse of its process. Quite

often that is exercised by a dismissal of the action which

constitutes the abuse." ADESANOYE VS. ADEWOLE

(2000) 9 NWLR (Pt. 127) 671

For the above reasons, and the fuller reasons contained in

the lead judgment just delivered by my learned brother I.

G. Mbaba JCA, I too dismiss the appeal of the appellant,

abiding by the consequential orders

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Appearances:

P.G.C Achigasim, Esq. For Appellant(s)

Bob C. Ogu, Esq. with E.O Esq for 2ndRespondent:1st and 3rd Respondents: Unrepresented.For Respondent(s)

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