Abuse of Court Process refers to the improper use of Legal procedure for malicious or perverse reason. It is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious or oppressive. Abuse of court process always involves some element of bias, malice, some deliberateness, some desire to misuse or pervert the system of administration. In the case of ADESOJI V. FUTA (2017) 9 NWLR (PT 1570) 208 AT 221 PARAS C-D, 226 PARAS C-G, the court describes an abuse of court process as an improper use of judicial process by a party in litigation.
![](https://thenigerialawyer.com/wp-content/uploads/2024/11/TheNigerialawyer-WhatsApp-Channel1.jpg")
The key element of abuse of court process is the malicious and deliberate misuse of regularly issued court process that is not justified by the underlying legal action. Abuse of court process is an intentional tort wherein the abuser is interested only in accomplishing some improper purpose or object. The presence of abuse of court process makes the operation of the rule of law very vulnerable, subjective, permeable and outcomes largely biddable. The abuse of court process can easily undermine or ridicule judicial process or turn the judicial system into an institutional constraint to democracy. Abuse of court process has a negative effect on the administration of justice, and it can procure courts to make conflicting orders thereby undermining the due process of the court and the rule of law. In the case of PDP V. SHERIFF (2017) 15 NWLR (PT. 1588) 219 AT 265-266 PARAS D-G, the court held thus:
“….the basis of the rule on abuse of court process is the real possibility
of two conflicting decisions in respect on one and the same subject matter.
So, it is desirable that the issues common to both parties are heard and deter-
mined in only one court”.
Abuse of court process is imprecise. It involves circumstances and situations of infinite variety and condition. It is deducible from the elastic nature of abuse of court process that there is no hard and fast rules in determining the absence or presence of abuse of court process in any suit. In the case of DONALD V. SALEH (2015) 2 NWLR (PT 1444) 529 AT 568 PARAS G-H, the court held thus:
“There is no hard and fast rule in determining the absence or presence of abuse
of court process in any action. Rather, the court is enjoined to examine each case
predicated on its facts and circumstances, in order to ascertain if it exhibits an
abuse of court process”.
However, a common feacture of the concept is simple “the improper use of judicial process by a litigant to interfere with the administration of justice”. To dictate an abuse of court process, the court has to look out the state of mind of the alleged abuser to know if the instituted suit was accompanied with some bias, malice, some deliberateness, some desire to pervert the system of administration of justice. Therefore, the circumstances which would give rise to an abuse of court process include the following:
- Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same subject matter between the same parties even there exists a right to begin the action.
- Instituting different actions between the same parties simultaneously in different courts even though on different grounds.
- Where two similar processes are used in respect of the exercise of the same right. For example, a cross-appeal and a respondent notice.
- Where an application for adjournment is sought by a party in an action to bring an application to court for leave to raise issues of facts already decided by the lower court.
- Where there is no law supporting a court process or where it is predicated on frivolity or recklessness.
- Where there are appeals on the same judgment and against the same parties and also on the same subject matter. In the case of BUKOYE V. ADEYEMO (2017) 1 NWLR (PT. 1546) 173 AT 191 PARAS F-G, the court held that even though the constitution provides a right of appeal to any party aggrieved by a decision of a court, that does not give such an aggrieved party the right to abuse the process of the court when exercising such right of appeal. The court held further that the practice of filing multiple appeals against one judgment is undesirable and ought to be discouraged by award of punitive costs against the counsel involved personally.
- Where a party goes forum-shopping, hoping to achieve a conceived right.
- Where an action is between the same parties and their allies on the same subject matter, even if differently worded but with the same result, the later suit filed is an abuse of court process. SEE: PDP V SHERIFF (SUPRA) 219 AT 265-266 PARAS G-B.
- 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 vexatious and an abuse of court process. SEE: LOKPOBIRI V. OGOLA (2016) 3 NWLR (PT. 1499) 328 AT 367-368 PARAS E-B
- It constitutes an abuse of court process where there are multiple actions on the same subject matter between the same parties and in different courts, and the suits may not have to be filed by the same party in the actions. For instance, an action subsequently instituted by an opposing party as defendant in an earlier action on the same subject matter between same parties will definitely constitute an abuse of court process. The reason being that the defendant could have, conveniently and appropriately, in the exercise of his right of action against the plaintiff, instituted in the same action, a counter-claim, and validly sought his reliefs against his adversary, otherwise the court will take the subsequent action to be meant to annoy, irritate and harass the opponent and it will constitute an abuse of court process.
The Law is trite that abuse of court process does not lie in the exercise of the right per se but in the multiplicity and manner of the exercise of the right. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate, intimidate and annoy the opponent and interfere with the administration of justice. This position is not prejudice to the fact it is not the law that once a party files another suit before another court on the same subject matter, there is an abuse if court process. This is because an act can give rise to different suits. A subject matter may very well give rise to different rights. In other word, different suits can emanate from the subject matter but with different rights and reliefs. SEE: N.D.I.C. V. U.B.N. PLC (2015) 12 NWLR (PT 1473) 246.
An abuse of court process is an antithesis to rule of law, due process and judicial process. It is regrettable that most lawyers involved in abuse of court process are with due respect the senior members of the members especially Senior Advocates of Nigeria who are supposed to be the custodians of best practices in the profession, and not practices to satisfy the whims and caprices of the clients. Lawyers who are proven guilty of intentional abuse of court process can be subject to disciplinary action by the Legal Practitioners Disciplinary Committee. The recent case of LEGAL PRACTITIONERS’ PRIVILEGE COMMITTEE V. KUNLE OGUNBA, SAN (as he then was) is an example of a Senior Advocate of Nigeria who refused, neglected and failed to pay heed to the rules of professional ethics which requires him to avoid carrying out acts that will derail the due process of the court. The alleged misconduct of the learned brother is a slap to judicial process and course of justice.
Finally, the court possesses inherent powers to stop any abuse of its process when it arises by virtue of Section 6(6) (a) of The Constitution of the Federal Republic of Nigeria 1999 (As amended). It is the duty of the court to ensure that the machinery of justice is duly lubricated and not abused. Therefore, the law gives the court the unbridled licence, under their wide inherent powers, to truncate, abate, and perform a judicial burial to any matter which is tainted with an abuse of judicial process. Where a court finds that there is abuse of court process, the said process vacates. In the cases of LOKPOBIRI v. OGOLA (SUPRA) 328 AT 388 PARAS E-F, LADEJO V. AJIMOBI (2016) 10 NWLR (PT. 1519) 88 AT 128 PARAS A-B, the court held that where a court comes to the conclusion that its process is being abused, the appropriate order to make is that of dismissal of the process.
However, there are few judicial authorities to the effect that the appropriate order to make in abuse of court process is striking out and not dismissal. The most confusing and controversial authority among others, is the case of COMMISSIONER OF EDUCATION, IMO STATE V. AMADI (2013) NWLR (PT 1370) 133 AT 151 PARAS E-F, where the Court of Appeal held thus:
“Once a court is satisfied that a proceeding before it is an abuse of court
Process, it has the power and the duty to dismiss or strike it out”.
The few authorities on striking out order of an abused court process believe that where a suit/case/application/appeal has not been considered on merit, the appropriate order to make is to strike out the said action. With due respect, the above view is not inapplicable and unfounded. Considering the harmful nature of abuse of court process on rule of law and judicial system, there is no basis for resuscitating or re-listing a matter that ought to suffer vicissitude of death and judicial burial. Such matter cannot be revived.
In the locus clasicus of ARUBO V. AIYELERU (1993) 3 NWLR (PT 280) 126 AT 142, the Supreme Court held that the proper order a court should make when a suit is an abuse of court process is an order of dismissal and not striking out. Also, in the cases of IDRIS V. AGUMAGU (2015) 13 NWLR (pt. 14777) 441 AT 480 PARAS D-E,
TSA INDU LTD V. F.B.N. (NO. 1) (2012) 14 NWLR (PT 1320) 326 AT 349 PARA C, the Court held that an action enmeshed in an abuse of court process is penalized by an order of dismissal and not striking out. See also EJIOFOR V. APEH & 2 ORS V. PDP (2017) 11 NWLR (PT 1576) 252 AT 276 PARAS A-C.
BY: MIRACLE AKUSOBI, ESQ. miracleakusobi@gmail.com
Get your copy today and take the first step toward financial growth:👉 https://selar.co/4f16676016
_______________________________________________________________________ The Law And Practice Of Redundancy In Nigeria: A Practitioner’s Guide, Authored By A Labour & Employment Law Expert Bimbo Atilola
_______________________________________________________________________
[A MUST HAVE] Evidence Act Demystified With Recent And Contemporary Cases And Materials
Available now for NGN 40,000 at ASC Publications, 10, Boyle Street, Onikan, Lagos. Beside High Court, TBS. Email publications@ayindesanni.com or WhatsApp +2347056667384. Purchase Link: https://paystack.com/buy/evidence-act-complete-annotation
______________________________________________________________________
ARTIFICIAL INTELLIGENCE FOR LAWYERS: A COMPREHENSIVE GUIDE
Reimagine your practice with the power of AI “...this is the only Nigerian book I know of on the topic.” — Ohio Books Ltd
Authored by Ben Ijeoma Adigwe, Esq., ACIArb (UK), LL.M, Dip. in Artificial Intelligence, Director, Delta State Ministry of Justice, Asaba, Nigeria.
Bonus:
Get a FREE eBook titled “How to Use the AI in Legalpedia and Law Pavilion” with every purchase.
How to Order: 📞 Call, Text, or WhatsApp: 08034917063 | 07055285878 📧 Email: benadigwe1@gmail.com 🌐 Website: www.benadigwe.com
Ebook Version: Access directly online at: https://selar.com/prv626
