IN THE HIGH COURT OF FEDERAL CAPITAL TERRITORY

IN THE GWAGWALADA JUDICIAL DIVISION

HOLDEN AT GWAGWALADA

CASE NO.FCT/HC/CV/86/15

BEFORE HIS LORDSHIP ………………………………HON.JUSTICE M. BALAMI

COURT CLERK………………………………………………………………PAUL OJILE

BETWEEN

GUR INTERNATIONAL LTD & 10R……………………….PLAINTIFF

AND

CENTRAL BANK OF NIGERIA……………….…………DEFENDANT

Parties in Court

Rotimi ogunso(SAN) for the Applicant

Chijioke Kanu for the Respondent

RULING

The Honourable Court having gone through the motion on notice brought

pursuant to order 7 rules 2 & 3 rules of the Honourable Court 2004 and the

inherent jurisdiction of the Honourable Court, praying for reliefs 1-2 set out

on the face of the motion paper particularly relief (1) which seeks the order

of the Honourable Court dismissing this suit for being an abuse of court

process.

The grounds 1-3 clearly set out on the face of the motion on notice.

The 26 paragraphs affidavit in support deposed to by one Sale Sule, a legal

practitioner with the defendant/applicant law firm, the annexure marked

1,2,3 dated the 19-11-15 filed the same date, so also the counter affidavit

in 30 paragraphs deposed to by one Ikem O)nyeka who is a legal

practitioner in the law firm of Kanu-kanu 7 Co, Solicitors to the

Plaintiff/Respondent in this case and both counsel written addresses having

been duly adopted as their respective argument/submission before the

Honourable Court.

The applicant written address discussed the introduction, the motion on

notice filed before the Honourable Court, the reliefs sought before the

Honourable Court 1-2 set out on the face of the motion paper and the

affidavit in support of same.

The brief fact, which also discussed the applicant/respondent originating

summons, dated the 4-11-15, the 26 paragraphs affidavit in support and

the reliefs sought, dismissal of the present suit,

Issues for determination which states:

(a) Whether the suit as presently constituted does not amount to an

abuse of court process.

(b) Whether the present suit is not caught by the doctrine of res-

judicata and thus grossly incompetent.

The argument on issue a refers the Honourable Court to

paragraphs4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20 and 22 of the

affidavit in support, the order sought before the Honourable Court, the

declaratory reliefs and the case of Umeh v Iwu(2007)6 NWLR(Pt 1030)416

that is on the issue of efficient and effective administration of justice,

particularly on the issue of incidences of abuse see also Doma v

Adamu(1999)NWLR(Pt 598)311.

That in the present case the element of abuse are evidenced in that the

Plaintiff/respondent having instituted Suit No: FCT/HC/CV/93/08 before the

high court of the Federal capital Territory, claiming reliefs which the court

decline in its ruling and that ruling the plaintiff/respondent have appealed

against, the same plaintiff have now decided to approach this Honourable

Court to institute the instant suit and obtain further reliefs in a bid to

annoying obstruct the due process of law.

That the respondent approached the Honourable Court having instituted an

earlier action on the same subject matter as well as an appeal and now

seek by this process to obtain judgment through the backdoor, see the

case of Saraki v. Kotoye(1992) 9 NWLR(Pt 164)156 @ 188, which states

the conditions under which a court process would be described as an abuse

of court process.

(a) Institute a multiplicity of action on the same subject matter

against the same opponent on the same issues, or a 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

That the action of the respondent falls under the aforementioned heads of

abuse of court process, hence the Honourable Court has inherent powers

to protect itself from abuse of its process and should not allow a litigant to

abuse its process see Offor v Leaders & Co Ltd(Supra), see Exhibit CBN1

as well as Exhibit CBN3, the writ of summons issued on behalf of the

Respondent at the FCT High Court also the Respondent notice of Appeal

and the current proceeding via originating summons is an abuse of court

process of the court, which the Honourable Court has a burden to dismiss

the entire suit, see Arubo v. Aiyeleru(1993)NWLR(Pt 280)126 @ 146 where

it was held that once a court is satisfied that the proceeding before it

amount to an abuse of court process it has the right in fact and duty to

invoke its coercive power to punish the party which is in abuse of its

process, quite often that power is exercisable by dismissal of the action

which constitute the abuse, it is not correct to describe an abuse of process

as an irregularity, it is a much more fundamental vice which is usually

punished with a dismissal.

That from the above provisions, it seems apparent that the courts attitudes

to abuse in effective administration of justice is usually designed to be

punitive and never condoned with Kid gloves and that in view of the

deposition in the affidavit in support of the application and the material

placed before the Honourable Court, the Honourable Court is urged to find

this suit as instituted by the respondent as an abuse of the Judicial process

by discharging the orders and dismissing the instant suit.

On issue B, an Examination of Exhibit CBN2 attached to the motion on

notice, the terms of settlement which the Respondents now seek its

enforcement had earlier been adjudicated upon by a competent court of

law, via a ruling of the 25th March 2015 and same was refused on grounds

of suspicion and that it was unlawful for the management of the applicant

to enter into the said terms of settlement , the respondent now seek its

enforcement in the breach of the doctrine of Res Judicata, in that the

Respondent had admitted that this fact in paragraph 12 of its affidavit in

support of the originating summons, where it was deposed to as follows

“that the court refused to enter the parties said terms of settlement as its

judgment in the suit and that for the doctrine of res judicata to operate, it

must be shown that the parties issues and subject matter were the same in

the previous case those in the action in which the plea of res judicata is

raised see Salawu Yaye v Lawani Olubode & Ors(1974)10 SC 209 @ 220-

222,That the parties and the subject matter in the instant case/suit are the

same as in suit No: FCT/HC/CV/93/2008 Exhibited before the Honourable

Court by Exhibit CBN1, urging the Honourable Court to so hold.

That the issue of enforcement of the terms of settlement which has been

adjudicated upon by the court in Exhibit CBN2 cannot be permitted to be

re-opened by the respondent in this suit as it formed part of the subject

matter of litigation in Suit No:FCT/HC/CV/93/08 see Ogbogu v

Ugwuegbe(2003) 10 NWLR(Pt 189 @ 201-211 CC, and states the plea of

res judicata applies, except in special cases, not only to points upon which

the court was actually required by the parties to form an opinion and

pronounce judgment but to every point which properly belonged to the

subject of litigation and which the parties exercising reasonable diligence

might have put forward at the time( Ogbogu v. Ndiribe (1992) 6 NWLR (Pt

245) 40 referred to)

Counsel further submitted that the Honourable court in suit

No.:FCT/HC/CV/93/2008 was not only called upon to pronounce a

judgment on the terms of settlement (which is the same terms of

settlement as with this Honourable Court, and which was refused by the

Court in suit No.:FCT/HC/CV/93/2008,coram S.E. Aladetoyinbo J.) but that

the said terms of settlement constitute a major point in suit

No.:FCT/HC/CV/93/2008 and as such plea of res judicata shall apply to it.

That it is trite that the successful plea of res judicata constitutes a bar to

any fresh action as between parties. The rule of res judicata is derived

from the latin maxim nemo debet bis vexeri pro eadum causa. It is the

cause that matters under this doctrine and the Respondents cannot

formulate a fresh claim and re-litigate the same cause. Therefore once the

plea of res judicata has been established the jurisdiction of the Honourable

court is ousted and the case/ cause must be dismissed see the cases of

Odadhe v. Okujeni (1973)11 SC343 and Eze v. Nwaubani (2003) 7 NWLR

50 @ 66EF.urging the Honourable court to dismiss the instant suit as same

has been caught by the doctrine of res judicata and praying the

Honourable court to grant all the reliefs sought before the Honourable

court. The Honourable court at the same time summarizing the

plaintiff/respondent’s counsel written address which also discussed the

introduction which is the originating summons filed by the plaintiff and

issues raised for determination which are as follows:

1. Whether the terms of settlement between the plaintiffs and the

defendant over and in respect of the parties’ dispute in a suit in court

has not created a new agreement distinct and different from the

matter disputed in court which new agreement can be enforced on its

own without recourse to the dispute which gave rise to it.

2. Whether the plaintiffs are not entitled to the immediate payment of

the sums in the plaintiffs’ favour contained in the said parties’

agreement.

The address also discussed the plaintiffs’ claim 1-3 contained in the

said address also the notice of preliminary objection brought by the

defendant applicant referring the Honourable court to paragraph i-v

as it is contained in its written address particularly the earlier suit

instituted by the plaintiffs No.FCT/HC/CV/93/2008 (coram S.E.

Aladetoyinbo. J) Before the Federal capital Territory High court and

the pending motion before the court of appeal. Abuja Division their

appeal No.CA/A/114/2015 against the decision of this Honourable

court in the said suit No. FCT/HC/CV/93/2008.

The 30 paragraphs counter affidavits filed by the

plaintiffs/respondents in opposition of the notice of preliminary

objection also the two exhibit attached marked CAF and B

The issues for determination which went thus:

1. Whether the plaintiffs are not entitled to revive the subject matter

in suit No.FCT/HC/CV/93/2008 or any part or issue or issues there

from in a fresh suit.

2. Whether an interlocutory or applicant can be filed after the

substantive suit upon which the interlocutory appeal or application

was meant to be brought has been discontinued.

3. Whether an interlocutory appeal or application can pend after the

discontinuance of the substantive suit upon which the

interlocutory appeal or application was brought.

4. Whether the refusal of the Honourable court to adopt the parties’

terms of settlement as the judgment of the court in the said suit

No. FCT/HC/CV/93/2008 amounted to a judgment in the said suit

No. FCT/HC/CV/93/2008, so as to deprive the plaintiffs of the right

to institute this suit and this court of jurisdiction to hear same.

5. Whether the present suit before this Honourable court is an abuse

of court process

6. Whether the present suit is caught by the doctrine of res judicata.

The argument on issue 1, pray the Honourable Court to hold, that the

Plaintiffs are entitled to revive and represent the subject matter in suit No:

FCT/HC/CV/93/08 or any part or issue or issues therefrom in a fresh suit,

this is legally so because suit NO:FCT/HC/CV/93/08 was not dismissed and

no Judgment was entered thereto and that suit NO:FCT/HC/CV/93/08 was

discontinued by the Plaintiff and this fact and evidenced by Exhibit CAFA

and paragraph 2 of page 7 of Exhibit CBN 3.

That it is trite that where a party files a notice of discontinuance in a suit,

such a suit is unconditionally and automatically terminated and ceased

from that date of filing of the notice to be on the court’s list pending

matters or causes, it does not need any order of court to end the suit see

Amachree v. Princewell (2008)12 NWLR(Pt. 1098)at Page 345 it was held

that “with the admitted filing of notice of discontinuance by the appellant in

the lower court, the suit No: PHC/624/02 was unconditionally and

automatically terminated and ceased from that date to be on the lower

court’s list of pending matters of causes, it did not need or require any

order from that court to effectively and practically end the suit”

That parties filed their terms of settlement in suit No:FCT/HC/CV/2008 on

the 21-02-13 and applied to adopt the terms of settlement as the

Judgment of the court in the suit, the court in its ruling on the application

of the parties that court adopt their terms of settlement as the Judgment

of the court delivered on the 25th day of March 2013, refused the

application of the parties on the grounds that the parties settlement in the

suit was incompetent because by reason of an interlocutory appeal

No:CA/A/111/2011 was pending before the court of appeal at the time of

the application so the court lacks jurisdiction to adopt the said terms of

settlement and where a court finds as it did the court in suit

No:FCT/HC/CV/93/08 that the suit/application is incompetent for lack of

jurisdiction and the only way open to the Honourable Court is to strike out

the suit or application. This is because once a court finds that a suit or

application is incompetent such court is precluded from going into the

merit of the suit or application and that when the Honourable Court

refused to grant the application to adopt the terms of settlement of the

parties as its Judgment on ground of incompetence for lack of jurisdiction

by reason of interlocutory appeal NO:AC/A/111/2011 pending at the court

of appeal, the refusal amounts to striking out the parties application that

the court adopt their terms of settlement as the court’s Judgment in suit

No:FCT/HC/CV/93/09 and no more.

That the Plaintiff upon refusal of the parties application by the court to

adopt their terms of settlement as its Judgment in the suit on 25-03-08

filed to terminate the suit NO:FCT/HC/CV/2008 by a notice of

discontinuance of the said suit, hence the discontinuance of suit

No:FCT/HC/CV/20/08 by the Plaintiff on the 25-3-08 also has the effect of

striking out because the application by the parties that the court adopt

their terms of settlement as the Judgment of the court was deemed struck

out on ground of incompetence and suit NO:FCT/HC/CV/2008 was also

deemed struck out by reason and fact of its discontinuance by the

Plaintiffs.

It is trite law that where a court finds and holds that an action is

incompetent, null and void or that it has no jurisdiction to entertain it, it

does not dismiss the action, but merely strike it out, that where a suit or

application is struck out, a party is at liberty to represent the suit or

application in whole or in part as it desires in a fresh suit, in that where a

suit/application in whole or in part as he desires in a fresh suit, in that

suit/application have not been determined see Etete S. Owoh & 3 Others v

Chief Kingston U. Asuk & 1 other (2008)July- September NSCQR Vol. 35

page 94 at 98 where the Supreme court held that where a claim or rights f

parties have not been examined or looked into by the trial court and

appropriate findings made thereon resulting in a determination, these

claims or rights effectively remains pending and can be revived by any of

the parties in any other court of concurrent jurisdiction or even the same

court that handed down the striking out order for relisting under the

appropriate rules of the trial court on such terms as may be granted on

application.

The defendant/applicant in paragraph 4.9 of its written address stated that

this court in its ruling delivered on the 25-3-13 refused to grant the

application of the parties that the court adopt the parties terms of

settlement on grounds of suspicion and that the terms of settlement was

unlawful, which that submission does not represent the position of the

ruling of the Honourable Court in the said application or the law. See

paragraph 4.9 of the applicant written address.

That on the 25-3-13 case was adjourned for ruling and what was before

the Honourable Court on the 25-3-13 was for ruling on the parties terms of

settlement as the Judgment and not delivery of Judgment, it is when and

only when the court grant the application that a Judgment will be said to

be delivered in that the court in its ruling delivered on the 25-3-13 refused

to adopt the parties terms of settlement filed by parties is incompetent by

reason of a pending interlocutory appeal No. CA/A/111/2011, reasons

being as contained on page 2 of Exhibit CBN2 as follows:

“the parties have not informed the court what becomes the condition of

the appeal pending before the court of appeal, the presumption is that the

appeal filed at the court of appeal by the defendant is still pending, the

terms of settlement filed by the parties before the court on the 21st day of

February 2013 is incompetent because the matter is still pending in the

court of appeal and if the court of appeal should rule that the Honourable

Court lacks jurisdiction what happened to the consent Judgment which the

parties are seeking before the Honourable Court.

That when the court rules in suit No: FCT/CV/93/08 that the parties terms

of settlement is incompetent for lack of jurisdiction of the interlocutory

appeal, before the court of appeal and the only way open to the

Honourable Court is to strike out or application/terms of settlement, in that

from the time the court finds that it lacks jurisdiction/powers and

competence to delve into the merit of the case/application/terms of

settlement and that the court after finding that it lacks jurisdiction every

other steps taken, statement of reference made on the merit of the matter

goes to no issue for want of competence and jurisdiction and that in the

fate of the Honourable Court in suit No:FCT/HC/CV/93/08, see page 2 of

the Court ruling stated above in that there is a direct finding by the

Honourable Court that it has no jurisdiction to adopt the terms of

settlement of the parties on grounds of competence and lack of

jurisdiction. The court has no power in law after the findings and

conclusion to delve into any enquiry or make comment in respect of the

terms of the settlement, thus all other comments made by the Judge at

page 3 & 4 of the ruling Exhibit CBN2 on the merit of the matter/terms of

settlement were made without competence and therefore are of no legal

moment whatsoever.

On issue two, pray the Honourable Court to hold that interlocutory

appeal/application can be filed other substantive suit upon was merit to be

brought has been discontinued, hence the ruling delivered on the 25-03-

13, refusing to adopt the terms of the Judgment of the court in the suit

Exhibit CBN2, did not dismiss the suit No:FCT/HC/CV/93/08 or the terms of

settlement of the parties but merely refused to adopt same as the

Judgment of the court in the suit and the Honourable Court having refused

to act on the terms of settlement on grounds of incompetent for lack of

jurisdiction by reason of interlocutory appeal against the ruling of the

Honourable Court pending before the court appeal and the pending appeal

render the terms of settlement incompetent see page 2 of exhibit CBN 2

and the only order the Honourable Court can make is to strike out the

suit/application, hence the effect of the Honourable Court to act on the

parties terms of settlement on ground of jurisdiction is that it amounts to

striking out.

That it is evident that the respondents on the 25-3-13 discontinued suit

No:FCT/HC/CV/93/08 by the notice of discontinuance dated 25-3-13 Exhibit

CAF A see Exhibit CBN3.

“a motion filed before the court on the 10-4-13 seeking for an order of this

court to strike out this suit, the motion was never moved by the plaintiff

but still pending before the Honourable Court that part of Exhibit attached

is a notice of discontinuance of the suit filed on the 25-03-13.

That by law, notice of discontinuance takes effect from the date it was filed

the 25th day of March 2013 the suit was unconditionally and automatically

terminated by reason of the motion on notice for discontinuance filed by

the plaintiff and the case had ceased to be in court from that date.

The appeal No: CA/A/114/15 Exhibit CBN4 is an appeal against the ruling

of the court Motion No. M/78/2014 in suit No:FCT/HC/CV/93/2008. See

page 1 of the exhibit CBN4, M/78/14 filed on the 23-09-14 also see page 1

CBN3.

Praying the Honourable Court to hold that by the fact of the discontinuance

of the suit NO:FCT/HC/CV/78/14 was filed without any legal foundation,

this is so because suit No:FCT/HC/CV/93/08 was no longer before the

Honourable Court from the 25-3-13 to sustain motion N:M/78/14 filed on

the 23-09-14.

That it is trite that an application such motion an application such as

motion M/78/14 must rest and be sustained on a pending and subsisting

substantive suit and where however an application such as the one in the

motion M/78/14 was not rested and sustained on a pending and

substantive suit such application is void.

That appeal No:CA/A/114/15 was filed against the ruling in Motion

No:/M/78/14 which motion was by reason of having been filed without any

substantive suit was void as the appeal rest on nothing without any legal

foundation and therefore void without limit and an act which is void in law

is one which never existed and which never took place in see Owner of MV

Arabella v Nigerian Agricultural Insurance Corporation(Supra) page 112

ratio 7, where the supreme court held where an act is void, then it is in law

a nullity.

That in light of same Exhibit CBN5 is an interlocutory application made on

ground of suit No:FCT/HC/CV/93/08 and that CBN5 was filed on the 27-4-

15, suit No: FCT/HC/CV/93/08 was discontinued on the 25-3-13, thus at

the time/date of filing suit No: FCT/HC/CV/93/08 was no longer existing

before the Honourable Court to warrant the endorsement of the suit No:

FCT/HC/CV/93/08 on the process of the application.

That it is trite that no interlocutory appeal can be filed without

endorsement of the suit number of the substantive suit from which the

interlocutory appeal is brought on the interlocutory appeal process.

That where such substantive suit number from which the interlocutory

appeal is made is of suit Number which is not alive or pending and not

subsisting at the time of filing of the interlocutory appeal such interlocutory

application is void, that Exhibit CBN5 which is an interlocutory application

filed upon substantive suit No:FCT/HC/CV/93/08, when the substantive suit

was not pending or subsisting at the lower court was void and therefore

goes to not issue, hence no interlocutory application was ever pending at

the time of the institution of the instant suit see UAC v Macfoy, where the

court held that you cannot put something on nothing and expect it to

stand.

On issue three, urged the Honourable Court to hold that an interlocutory

appeal or application cannot be pending as an appeal before the appellate

court after the discontinuance of the substantive suit at the court below

upon which the interlocutory appeal or application was brought. In that the

appeal No.CA/A/111/11 was brought upon a ruling in suit

No:FCT/HC/CV/93/08 subsisting at the court below at the time of filing of

the said appeal No:CA/A/111/11.

That by Exhibit CBN3 and CAF A, the substantive suit No:FCT/HC/CV/93/08

was discontinued on the 25-03-13 and unconditionally and automatically

terminated with effect from that date, hence from the 25-03-08 when suit

No: No:FCT/HC/CV/93/08 was discontinued, appeal No:CA/A/111/11 had

lost its foundation and ceased to be pending as an interlocutory appeal

before the court of appeal hence the effect of that suit No:

No:FCT/HC/CV/93/08 had been terminated and ceased to be on the cause

list of pending matters and that any interlocutory appeals/application

rooted and made pursuant/dependent on the said substantive suit were

automatically aborted and ceased to be pending interlocutory

appeal/applications and this is the fate of the appeal No:CA/A/111/11

which has lost its legal foundation at the time of the termination of suit

No: No:FCT/HC/CV/93/08 by reason of discontinuance.

On issue 4, urged the Honourable court to hold that refusal of the court to

adopt the parties terms of settlement as Judgment of the court in suit

No:FCT/HC/CV/93/08did not amount to Judgment in the said suit so as to

deprive the Plaintiff of the right to institute this suit and that this

Honourable Court has the jurisdiction to hear same hence the Honourable

Court refusal to adopt the parties terms of settlement on ground that it is

in incompetent by reason of an interlocutory appeal against the ruling of

the court was pending before the Court of Appeal against the ruling of the

Honourable Court was pending before the court of appeal and that the

pending appeal renders the terms of settlement incompetent see page 5 of

exhibit CBN3.

That it is trite that where a court finds that application or a suit before it is

incompetent the only order such court can make is an order of striking out

the application or suit and it is clear that the effect of refusal of the court

to act on the parties terms of settlement on ground of incompetence is that

it amounts to striking out.

That it is trite that where a court finds out and holds that an action is

incompetent, null and void or that it has no jurisdiction to entertain it it

does not dismiss the action but merely strikes it out and that the court did

not deliver any Judgment in suit No:FCT/HC/CV/93/08 on the day it rules

on the application to adopt the parties terms of settlement on grounds of

incompetence for lack of jurisdiction the effect of the refusal commit to

mere striking out of the terms of settlement which by reason of same, the

terms of settlement is open for revival and presentation for a judicial action

by way of fresh suit in that suit No:FCT/HC/CV/93/08 was not dismissed by

the court but by discontinuance by the plaintiff, which the plaintiff needed

no leave of court to discontinue the suit.

The effect of this discontinuation is that all rights of the parties in the

subject matter of the suit remains intake and can be brought for

enforcement by way of a fresh suit.

That by reason of the discontinuance, the plaintiff have right to file a fresh

suit on all the subject matter of suit No:FCT/HC/CV/93/08 or any part there

from or any agreement arising from it, in that the Honourable Court made

it clear that no Judgment was delivered in suit No:FCT/HC/CV/93/08 see

last paragraph of page 2 to the 1st paragraph of page 3 of Exhibit CBN2

which states that if the court of appeal should rule that the court has no

jurisdiction what happens to the consent judgment which the parties are

seeking for?, that it is clear that no Judgment was ever given in suit

No:FCT/HC/CV/93/08 which was deemed struck out by the reason of

discontinuance by the plaintiff and that parties terms of settlement also

deemed to have been struck out by reason that the Honourable Court

holds that the terms of settlement was incompetent and that the court

lacks jurisdiction to adopt it because of the interlocutory appeal pending at

the court of appeal at the time the terms of settlement was filed before the

court.

On issue five, urged the Honourable Court to hold that the present suit

before the Honourable Court is not an abuse of court process, having

established by credible evidence in the application that suit No:

FCT/HC/CV/93/08 was not dismissed by the Honourable Court but only

discontinued by the plaintiff and therefore no Judgment was delivered by

the court in the suit and that the consequence of discontinuance effectively

remain without the leave of the Honourable Court as in the present case

which amounts to striking out hence the claim and rights is in the suit

discontinued effectively remains pending and can revive by any of the

parties in any other court of concurrent jurisdiction and that where a party

has the right to institute an action, a suit instituted in the exercise of that

right cannot amount to an abuse of court process as adduced by credible

evidence that from the 25-3-13 when suit No:FCT/HC/CV/13 was

discontinued, no interlocutory application or appeal is capable in law to be

pending on the suit, hence the

i. Motion filed on the 25-9-14 to set aside the ruling of the court

delivered on the 25-5-13.

ii. Ruling of the court delivered on the 2nd day of March 2015.

iii. Appeal No:CA/A/114/15 against the ruling of 2-3-15

iv. Appeal No: CA/A/111/11 and the application made thereto all have

been shown to be without foundation by reason of the

discontinuance of suit No:FCT/HC/CV/93/08 on the 25th day of

March 2013 and therefore were all void.

In that suit No:FCT/HC/CV/3007/15 was validly and effectively

discontinued, hence the filing of the present suit, Exhibit CAF 8 evidence

that the discontinuance preserved the rights of the plaintiffs to revive the

suit and therefore conferred on the Plaintiff a cause of action and it is the

law, hence the said suit amount be an abuse of court process where there

is a cause of action, hence by the reason canvassed by the plaintiff, the

plaintiff have locus standi to maintain this action.

On issue 6, urge the Honourable Court to hold that the said suit is not

caught by the doctrine of res judicata operates from Judgment/decision of

the court on the subject matter of the suit and where there is no judgment

or decision of the court in a suit the doctrine of res judicata cannot

operate/arise from such a matter in that the Honourable Court never

delivered a Judgment in suit No:FCT/HC/CV/93/08 at any time in that the

Honourable Court refused to act on the terms of settlement of the parties

also its refused to adopt the terms of settlement as its Judgment in the

matter and its refusal to act on the terms of settlement of the parties is not

a Judgment because such refusal to act on the terms of settlement of the

parties is not a Judgment in that the Honourable Court did not deliver a

ruling on the parties terms of settlement but only decline jurisdiction.

Hence did not deliver Judgment in the substantive suit, but only refused to

act on the terms of settlement on grounds of incompetence and the effect

of the refusal to act on the terms of settlement in that of no judicial action

has been taken on the terms of settlement is that no judicial action has

been taken on the terms of settlement is open for presumption for judicial

action by way of fresh suit see Paragraph Exhibit CBN3.

That it is trite that where a court finds that an application or a suit because

it is incompetent the only order such court can make is an order of striking

out the application or suit.

Hence it is clear that the effect of refusal of the court to act upon the

parties terms of settlement on ground of incompetence it amount to

striking out, hence the plaintiff have the right to file a fresh suit on all the

subject matter of the suit and that suit No: FCT/HC/CV/93/08 or any part

there from of any decision on any issue in the suit because the suit was

discontinued, hence there is no way a suit in which Judgment was not

delivered or the application no decision made can operate as res judicata,

equally there is no way a suit which was discontinued by the plaintiff

without leave of court can operate as res judicata to operate there must be

a judgment see Mallam Yusuf Jimoh & 2 Ors v Mallam Karimu

Akonde(2009) Jan-Mar Vol 37 , page 667 at 672 ratio 8, on the issue of

conditions that must exist for res-judicata to operate or available for a

party, a party must show the following pre-condition:

1. That the identity of parties and/or privies in the previous case and

the present case are the same.

2. The issue and subject matter(identity of cause of action)litigated

upon in the previous case and present case are the same

3. There must be a valid judgment of a court of competent jurisdiction

on the point or subject matter.

4. If the action concerns land, there must be evidence that the land in

the previous case is the same as in the present case.

That the consequence of discontinuance of a suit without leave as in the

instant suit in that it operates as a striking out, and the consequence of the

court holding that the terms of settlement was incompetent also operates

as a striking out with effect that “the claims and rights in the suit

discontinued effectively remains pending and can be revived by any of the

parties in any other court of concurrent jurisdiction” hence the issue of res-

judicata does not arise at all in this suit on the ground that or relied upon

by the applicant or upon any ground or at all urging the Honourable Court

to dismiss the notice of preliminary objection of the applicant as it has

fai9led to prove that there was a Judgment in suit No:FCT/HC/CV/93/08 to

sustain the plea of res judicata in this case, and that the entire grounds

upon which the applicant objection is brought are of no legal foundation

and cannot therefore sustain the applicant objection, urging the

Honourable Court to so hold and dismiss the said objection.

The Honourable Court having carefully considered the process filed before

the Honourable Court by the parties in this suit, the notice of preliminary

objection and the other documents filed, particularly the ruling of

Honourable Justice Alade and the counsel written addresses having been

duly adopted as parties oral argument in respect of the said application,

the Honourable Court is of the view and hold that it is in total agreement

with the applicant’s counsel submission that the said suit before the

Honourable Court is an abuse of court process on the following grounds:

1. That the parties before the Honourable Court, the Plaintiff and

defendant are the same parties in this suit No: FCT/HC/CV/93/08.

2. The subject matter of the case before the Honourable Court is the

same with the matter in suit No:FCT/HC/CV/93/08 before Honourable

Justice S.E.Alade

3. There is an appeal to the appeal court which is pending before the

court of appeal CA/A/111/11,

4. There is no evidence before the Honourable Court that the appeal to

the court of Appeal No:CA/A/111/11 have been withdrawn by the

plaintiff/respondent in this matter and since there is no evidence

before the Honourable Court that that appeal has been withdrawn or

disposed of.

the Honourable Court is of the view that that appeal is still pending before

the court of appeal and to hold to the contrary it is clear case that for the

Honourable Court to entertain the present suit before the Honourable Court

is sitting on appeal on the decision of my learned brother Judge justice S.E

Alade, which the Honourable Court is of the view that if the

plaintiff/Respondent seems to be dissatisfied with the ruling of the

Honourable Court i.e for Justice S.E Alade for the ruling to adopt and enter

Judgment between the parties for the terms of settlement reached

between the parties the proper thing for them to do is to appeal against

the ruling and not by approach the Honourable Court by filing a fresh

suit, my question is that if the application is refused, what happens to the

plaintiff’s appeal at the court of appeal which has been abandoned, the

Honourable Court will not advice parties to file processes and later

abandon same in the name of approaching a court for a fresh suit in

respect of the same parties and in respect of the same subject matter to

do the contrary the Honourable Court is of the view that that is not the

position of the law3.

It is very correct that the respondent argued brilliantly as it is contained in

its written address duly adopted as its oral argument in this case, but the

Honourable Court still holds that argument is for the court of appeal not

this court.

That since the court of appeal did not set aside the ruling of Justice S.E

Alade of the FCT High Court, the plaintiff/respondent cannot approach the

Honourable Court by filing a fresh suit between the same parties and on

the same subject matter and on this note the Honourable Court is of the

view that the plaintiff approaching the Honourable Court for remedy lacks

merit in that the conduct of the plaintiff/respondent before the Honourable

Court is an abuse of court process, based on the foregoing, the

Honourable Court is of the view that the defendant/applicant having

approached the Honourable Court by filing a notice of preliminary objection

hold it is proper and in order and it is hereby sustained, but further states

and hold that the proper order to make is to strike out this matter and not

to dismiss same and it is hereby granted, the said notice of preliminary

objection is hereby sustained and the suit filed before the Honourable

Court suit No:FCT/HC/CV/86/16, is hereby struck out and the Honourable

Court so hold. See the case of Umeh v Iwu(2008)8 NWLR(PT 1089 275 SC

Signed

Judge

11-4-16