Concept of and common features of Abuse of Court Process

CASE CITATION: R-BENKAY NIGERIA LIMITED v. CADBURY NIGERIA PLC. (2012) 3 S.C. (Pt. III) 169

DATE OF JUDGMENT: FRIDAY 23^RD DAY OF MARCH, 2012

COURT: SUPREME COURT

SUIT:  SC. 29/2006

CORAM:     

1. IBRAHIM T. MUHAMMAD (Presided)
2. OLUFUNLOLA O. ADEKEYE (Delivered the Leading Judgment)
3. BODE RHODES-VIVOUR
4. NWALI S. NGWUTA
5. MARY U. PETER-ODILI

ISSUE(S):   WHEN IS THE PROCESS ABUSED?

CASE SYNTHESIS

“The concept of abuse of court process relying on numerous decided authorities is imprecise. It involves circumstances  and  situation  of  infinite  variety  and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice. The circumstances which will give rise to abuse of court process include:-

a) Instituting a multiplicity of actions on the same subject matter against the same opponent on  the  same  issues  on multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.

b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds.

c) Where two similar processes are used in respect of the exercise of the same right for example, a cross-appeal and a Respondent’s notice.

d) Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by the lower court.

e) Where there is no law supporting a court process or where it is  premised  on frivolity or recklessness.

f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.

g) It is an abuse of court process for an Appellant to file an application at the trial court in respect of  a  matter  which  is already subject of an earlier application by the Respondent at the Court of Appeal. When the Appellant’s application has the effect of over reaching the Respondent’s application.

h) Where two actions are commenced, the second asking  for  a  relief  which  may have  been  obtained  in  the  first,  the second action is prima facie vexacious and an abuse of court process.

• Saraki v. Kotoye (1992) 9 NWLR (Pt. 264)156.
• Ogoejeofo   Ogoejeofo  (2006)  1  S.C (Pt.I) 157;
• Abubakar   Unipetrol  (2002)  4  S.C.(Pt.II);
• Plateau State v. A.G. Federation (2006)1 S.C. (Pt.I) 1;
• Dingyadi   I.N.E.C  (No2)  (2010)  7-12S.C. 105;
• Arubo Aiyeleru  (1993)  3  NWLR  (Pt.280) 126.
• Adesanoye v. Adewole (2000) 5 S.C. 124;
• Vaswani Trading .Co. vs. Savalakh & Co.(1972) 12  C.  12  S.C.(Reprint) 50;
• Okorodudu v. Okoromadu (1977) 3 S.C.21; (1977) 3 S.C. (Reprint) 13.

The common feature of an abuse is in the improper use of the judicial process by a party in litigation. An abuse of court process does not envisage a scenario like the instant appeal where the Appellant and the Respondent were exercising respective feasible right of action. In ID/749/97 the Appellant maintained its counter-claim – while the Respondent filed  Suit  No.  ID/999/2000 to seek  a remedy for his grievance. The concurrent findings of the two lower courts that the order made in the case cannot be said to be an abuse of court process is right and correct in the circumstance of the case. This court has no cause whatsoever to disturb such findings.

R-BENKAY NIGERIA LIMITED v. CADBURY NIGERIA PLC. (2012) 3 S.C. (Pt. III) 169 at 191-193 Paras. 15-35

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