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WHAT CONSTITUTES ABUSE OF COURT PROCESS

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Saraki vs Kotoye (1992) 11-12 SCNJ, on what constitutes abuse of Court process, as follows: “The abuse consists in the intention, purpose and aim of the person exercising the right of issue (of the process) to harass, irritate and annoy the adversary, and interfere with the administration of Justice, such as instituting actions between the same parties, simultaneously, in different Courts even though on different grounds … Abuse of process of the Court is a term generally applied to a process which is wanting in bonafide and is frivolous, vexatious or oppressive. It can also mean abuse of legal procedures or improper use of judicial process.”

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abuse of process

CONCEPT OF ABUSE OF COURT PROCESS AND CIRCUMSTANCES IN WHICH IT ARISES

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 appellants application has the effect of over reaching the respondents 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, pg. 156 Oguejiofor v. Oguejiofor (2006) 3 NWLR pt. 966, pg. 205 Abubakar v. Unipetrol (2002) 8 NWLR, pt. 769, pg. 242 Plateau State v. Attorney-General of Federation (2006) 3 NWLR pt. 967, pg. 346 Dingyadi v. I.N.E.C (No. 2) (2010) 18 NWLR, pt. 1224, pg. 154. Arubo v. Aiyeleru (1993) 3 NWLR pt. 280, pg. 126 Adesanoye v. Adewole (2000) 9 NWLR, pt. 671, pg. 127 Vaswani Trading Co. v. Savalakh and Co. (1972) ALL NLR, pt. 2, pg. 483 Okorodudu v. Okoromadu (1977) 3 SC 21.

— O.O. Adekeye JSC. R-Benkay Nigeria Limited. V. Cadbury Nigeria Limited (SC.29/2006, 23 Mar 2012)

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ALLEGATION OF ABUSE OF COURT PROCESS MUST BE PROVED

My lords, an allegation of abuse of Court process is a serious allegation and must be established by the person so alleging with sufficient materials before the Court before which the allegation is made. The sufficient material need not be an affidavit if on the face of the processes filed, it is obvious that the party by his own showing is guilty of abusing the process of the Court. However, where such facts are not apparent on the face of the processes filed, then it is incumbent on the party so alleging to place before the Court, mostly by way of affidavit evidence, the material is sufficient enough to warrant the finding of an abuse of Court process, failing which such an objection must fail. For a suit to constitute an abuse of Court process, though the circumstances are varied and infinite, it must be shown in what way or manner it constituted an abuse of Court process by the party so alleging. It is not such an allegation that a party would make and then fold his hands to see how the other party wriggles out of it. The law is simple and very trite he who alleges must prove what be alleges.

— B.A. Georgewill, JCA. General Telephone v. Asset (2017) – CA/L/336/2015

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WHAT IS ABUSE OF PROCESS

There is abuse of process when a party uses the issue of judicial process to the irritation and annoyance of the other party and in the process disrupts the smooth administration of justice. A proceeding that is frivolous or oppressive is an abuse of process, e.g. filing multiplicity of actions on the same subject matter against the same opponent on the same issue. See Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) p. 156. Agwasim v. Ojichie (2004) 10 NWLR (Pt. 882) p.613; Okorodudu v. Okoromadu (1997) 3 SC p.21.

— O. Rhodes-Vivour JSC. Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Anor. (SC.535/2013(R), 23 June 2017)

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WHAT QUALIFIES AS ABUSE OF COURT PROCESS

It is trite law that, abuse of Court or judicial process simply means, the use of a Court process mala fide or in bad faith to the annoyance of the opponent. One variety of it is the institution of multiferous actions between the same parties with regard to the same subject matter and same issue, in the same or another Court. See Abdu Yunusa Indabawa v. Garba Magashi & Anor (2016) LPELR 41626 (CA) and Umeh v. Inu (2008) 8 NWLR (pt. 225) at 245. A quick look at the Originating Summons in Suit No: FHC/ABJ/CS/1275/2022 will show that, same was instituted in the Federal High Court, Abuja on the 27th day of July, 2022. Being a pre election matter, it ought to have been determined within 180 days as required by Section 285(10) of the 1999 Constitution. It therefore means that it lapsed by January, 2023 about a month before the Election in question was conducted. This petition having been instituted on the 20/3/2023 when Suit No: FHC/ABJ/CS/1215/2022 was no more alive, does not qualify as an abuse of Court process. This ground for this objection is also discountenanced.

— H.S. Tsammani, JCA. APM v INEC & Ors. (2023) – CA/PEPC/04/2023

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MEANING OF ABUSE OF COURT PROCESS

Now, the term ‘Abuse of Court process’ is often seen to be synonymous with multiplicity of suits, but though that in a way is a correct proposition of the law yet abuse of Court process is much more than mere multiplicity of suits. In other words, multiplicity of suits is not the only way by which abuse of Court process could be constituted. Simply put, and for lack of a precise or concise definition of the term ‘abuse of Court process’ denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise or concise definition. This is rightly and arguably so because what would constitute or amount to abuse of Court process is very diverse, imprecise and thus subject to infinite or indefinite considerations.

— B.A. Georgewill, JCA. General Telephone v. Asset (2017) – CA/L/336/2015

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WHAT IS AN ABUSE OF PROCESS

It is recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3 S.C. 21, Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se. The abuse consists in the intention purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (Pt. l 19) 6.

— A.G. Karibe-Whyte, JSC. Saraki v. Kotoye (1992) – S.C. 250/1991

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