AONDOHEMBA IMOJIME & ANOR V. REGISTERED TRUSTEES OF NKST & ORS (2022)

Background

This appeal arose from a ruling of the High Court of Benue State sitting at Gboko in Suit No. GHC/43/2017, delivered on 8 October 2018. The appellants claimed ownership of a large parcel of land known as the Imojime Hon. family land. Their claim was founded principally on traditional evidence and inheritance from their late father. They sought declarations of ownership, revocation of a Certificate of Occupancy issued in respect of the land, declarations that the respondents were trespassers, recovery of possession, an order requiring the respondents to vacate the land, and perpetual injunction against further interference.

The 1st and 2nd respondents applied for the striking out of the 2nd respondent’s name on the ground that it was not a juristic person and for dismissal of the entire suit as incompetent. The 3rd and 4th respondents also filed a preliminary objection, principally contending that the action was statute barred. The applications were consolidated. The trial court upheld the objections and dismissed the appellants’ action in limine, holding, among other things, that the action amounted to an abuse of court process and had been commenced outside the applicable limitation period.

The respondents relied substantially on an earlier action, Suit No. GHC/50/2013, which had been withdrawn by the appellants and struck out following an application made in open court. The trial Judge considered the earlier suit and related processes, marked Exhibits EZA1 and EZA2, and concluded that the later action was an improper attempt to revive the same claim after the earlier action had encountered limitation objections. The Judge also made adverse comments suggesting that the appellants’ counsel had engaged in professional misconduct, sharp practice and mischief.

Issues

1. Whether the trial Judge was right to rely on Exhibits EZA1 and EZA2 in holding that Suit No. GHC/43/2017 was an abuse of court process and statute barred.
2. Whether the trial Judge failed to consider the appellants’ contention that the preliminary objection of the 1st and 2nd respondents was incompetent because those respondents had not first filed a memorandum of appearance or defence.
3. Whether the trial Judge was justified in finding that the appellants’ counsel had indulged in professional misconduct, sharp practice and mischief.

Ratio Decidendi

The Court of Appeal allowed the appeal. It held that a suit which has been withdrawn and struck out, rather than dismissed on its merits, does not extinguish the plaintiff’s right to institute a fresh action. Under Order 23 rule 1(1), (2) and (4) of the Benue State High Court (Civil Procedure) Rules 2007, discontinuance or withdrawal is not a defence to a subsequent claim. A subsequent action may be filed, subject only to compliance with any terms or conditions imposed by the court when the earlier suit was withdrawn. Since no such terms were imposed, the appellants were not barred from filing Suit No. GHC/43/2017.

The Court distinguished an order striking out from an order of dismissal. Striking out generally leaves the matter capable of being restored or refiled, particularly where it was not determined on the merits. Dismissal, especially dismissal on the ground of abuse of process after final determination, ordinarily brings the litigation to an end and cannot be circumvented by filing the same case afresh. The earlier suit in this matter had been struck out upon the appellants’ application and could not properly be used by the respondents or the court as the basis for condemning the later suit.

On limitation, the Court restated that the proper approach is to examine the writ of summons and statement of claim to determine when the cause of action arose, and then compare that date with the date of commencement of the action. However, section 1(2) of the Limitation Laws of Benue State 2004 excludes actions concerning title to, or interests in, land held under customary tenure. The appellants’ pleadings disclosed a claim relating to customary family land. Consequently, the limitation statute did not apply. In addition, the pleadings alleged continuous trespass, fraud and concealment. Continuous trespass may sustain a cause of action while the trespass continues, while fraudulent concealment may postpone the running of time until discovery of the fraud.

The Court further held that a party relying on a point of law as a defence must plead it in accordance with Order 22 rule 2 of the Benue State High Court Rules. The 1st and 2nd respondents had not filed a statement of defence before raising limitation as an objection. Although the issue concerning their failure to file a memorandum of appearance had previously been dealt with by the trial court under the saving provisions of Order 5 rule 2, that earlier ruling had not been appealed and could not properly be reopened.

Court Findings

The Court found that the trial Judge’s reliance on a withdrawn and struck-out action was legally erroneous. The fact that the earlier and later proceedings sought substantially similar reliefs did not, without more, establish abuse of process. The withdrawal was made openly and without objection, and the appellants were legally entitled either to seek restoration of the struck-out matter or to commence a fresh action, including one in which any perceived defect was corrected.

The Court also condemned the trial Judge’s description of the appellants’ conduct and counsel’s professional integrity. The remarks were held to be baseless, unsubstantiated and inconsistent with the restraint and decorum expected of a court. The appellants’ decision to withdraw and refile was within the law and did not amount to sharp practice or professional misconduct.

Conclusion

The appeal was allowed and the judgment of the High Court delivered on 8 October 2018 was set aside. Suit No. GHC/43/2017 was remitted to the High Court of Benue State for hearing and determination by a different Judge. Costs of N80,000 were awarded in favour of the appellants and against the 1st and 2nd respondents only.

Significance

The decision is significant for Nigerian civil procedure and land law. It confirms that withdrawal and striking out do not ordinarily destroy a claimant’s right to sue afresh, unless the court imposes conditions that have not been satisfied. It also emphasises that abuse of process must be established on proper legal grounds and cannot be inferred merely because a later action resembles an earlier one that was never decided on its merits. In land disputes involving customary tenure, the statutory limitation regime may be inapplicable, and allegations of continuing trespass, fraud or concealment may independently defeat a limitation objection. Finally, the judgment underscores the need for trial courts to distinguish jurisdictional incompetence, which ordinarily attracts striking out, from a merits-based determination warranting dismissal.