➥ CASE SUMMARY OF:
Elizabeth Mabamije v. Hans Wolfgang Otto (SC.156/2005, 22nd day of January 2016)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Estoppel;
Abuse of court process (filing same suit twice);
➥ CASE FACT/HISTORY
This is an appeal from the judgment of the Court of Appeal, Benin City Division delivered on the 10th day of June, 2004. Briefly, the facts are these According to the Plaintiff/Appellant, she claims the Respondent promised to marry her, but breached his promise by refusing to marry her.
As a result of the alleged breach, the Appellant as plaintiff took out a writ of summons claiming:
“1. The sum N20,000,000 (Twenty Million Naira) being damages, suffered by the Plaintiff for breach of promise to marry was made to her by the defendant in December, 1986 (and renewed every year up to June, 1999 and April (2000) at various places in Warri.
- An Order compelling the defendant to perfect/complete all the marriage arrangements concerning the Plaintiff which the defendant earlier commenced with plaintiff parents/relations.”
After pleadings were filed and exchanged, the defendant filed a motion on Notice on the 7th of February, 2001. The motion was brought under Order 24 Rules 2 and 3 of the High Court (Civil Procedure) Rules of Bendel State and under the inherent jurisdiction of the Court. The defendant asked for the following:
“(a) An Order setting down for hearing the points of law raised in paragraph 16 of the Statement of Defence.
(b) An Order dismissing the suit in its entirety and
(c) For such further order or other orders as this Honourable Court may deem fit to make in the circumstances.”
The Defendant’s application was dismissed. Dissatisfied with the Ruling of the trial Court, he filed an appeal which was heard by the Court of Appeal, Benin-City Division.
On the 10th day of June, 2004 the Court of Appeal upset the judgment of the trial Court and allowed the appeal. The Court said: “…I agree entirely with the submissions of the learned SAN that estoppel was established upon the un-contradicted affidavit evidence before the Court.”
This appeal is against that judgment.
➥ ISSUE(S)
I. Whether estoppel was established upon the un-contradicted affidavit evidence before the Court?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1:
[THE TRIAL COURT OUGHT TO HAVE REFERRED TO THE STATEMENT OF DEFENCE TO SEE IF THE ISSUE OF ESTOPPEL WAS RAISED
‘I agree with the Court of Appeal. Order 24(2), (3) of the Bendel State (Civil Procedure) Rules 1988 allows both sides to raise points of law in their pleadings and there is no restriction as to which of the pleadings to rely on in deciding if a point of law so raised disposes of a case against the Defendant. It is thus wrong under this provision for the Court to restrict the proceedings to the points in the statement of claim as submitted by learned counsel for the Appellant. In this case, the Motion on Notice to set down points of law raised in paragraph 16 of the statement of defence was served on the Appellant, along with the supporting affidavit stating the grounds relied on. The Respondent had the opportunity to controvert the facts averred and deposed to, but did nothing. The trial Court accepted the facts as proved, but surprisingly did not rely on them in its ruling. It thus becomes clear that the Appellant as Plaintiff did not taken advantage of Rule 3 of Order 25 supra which states that: “3 A Plaintiff on whom a Defendant serves a defence shall serve a reply, if he intends to defend it, serve on that Defendant a defence to counteraction.” Since the facts averred to in the statement of defence are not traversed the trial Court ought to have referred to the statement of defence to see if the Appellant was caught by estoppel.’
ESTOPPEL WAS ESTABLISHED ON THE UNCONTRADICTED AFFIDAVIT EVIDENCE
‘The admitted facts are the depositions in paragraph 6, 7, 8 and 9 of the affidavit in support which are on all fours with the averments in paragraphs 10, 11, 12, 13 and 14 of the Respondent pleadings referred to above. Estoppel was clearly established upon the uncontradicted affidavit evidence and that is the correct finding the trial Court ought to have come to. The Court of Appeal was correct to so find.’
THE APPELLANT IS ESTOPPED
‘Unchallenged affidavit evidence which I accept reveals that if the Appellant’s house was furnished by the Respondent to her satisfaction she would withdraw suit No.W/61/2000. The filing of Notice of discontinuance in suit No:W/61/2000 in indicative of the material fact that the Appellant was satisfied after the Respondent complied by furnishing her house. Estoppel is clearly established upon the un-contradicted affidavit evidence before the Court. It becomes clear that filing this suit on the same facts, in which the Appellant asks for the same reliefs as in Suit No.W/61/2000 amounts to an abuse of process. It amounts to an abuse of process when a party improperly uses the judicial process to the annoyance of the other party. Proceedings that are not bonafide, that are frivolous vexatious, or oppressive. See Saraki v. Kotoye (1992) 9 NWLR (Pt.264) P.156, Amaefule v. State (1988) 2 NWLR (Pt.75) p.156, Agwasim v. Ojichie (2004) 10 NWLR (Pt.882) p.613. My lords, instituting multiplicity of actions on the same subject matter against the same opponent on the same issue would amount to an abuse of process. Suit No.: W/61/2000 and this suit are on the same subject matter against the same Respondent on the same issue. Filling this suit amounts to an abuse of process as the Appellant discontinued suit No:W/61/2000 because she was satisfied with the furnishing of her house by the Respondent.’]
.
.
.
✓ DECISION:
‘The Court of Appeal in my view was correct to dismiss the appeal as estoppel was established upon the uncontradicted affidavit evidence before the Court. Equity would not allow the Appellant to be compensated twice. If allowed, there would no longer be justice between the parties. Fraud would be enthroned, and transparency and good faith jettisoned, and that would be bad for the justice system … In the light of all that I have been saying, there is clearly no merit in this appeal.
The appeal is hereby dismissed. Parties shall bear their costs.’
➥ FURTHER DICTA:
⦿ ESTOPPEL PREVENTS A PERSON FROM ACTING CONTRARY TO A STATE OF THINGS FORMALLY ASSERTED BY WORDS/CONDUCT
Estoppel is a rule that prevents a person to assert the contrary of a fact or state of things which be formally asserted by words or conduct. Put in another way, a person shall not be allowed to say one thing at one time and the opposite at another time. Estoppel is based on equity and good conscience, the object being to prevent fraud and ensure justice between the parties by promoting transparency and good faith. — O. Rhodes-Vivour JSC.
⦿ AFFIDAVIT NOT CONTRADICTED MUST BE TAKEN AS TRUE
Where facts deposed to in an affidavit have not been controverted such facts must be taken as true except they are moonshine. See Alagbe v. Abimbola 1978 2 SC p.39. Where an affidavit is filed, deposing to certain material facts and the other party does not file a counter-affidavit to dispute the facts, the facts deposed to in the affidavit would be deemed unchallenged and undisputed. — O. Rhodes-Vivour JSC.
⦿ WHERE AFFIDAVITS CONFLICT, TRIAL COURT SHOULD CALL FOR ORAL EVIDENCE
Where there is a conflict in affidavit evidence on a crucial and material issue, a trial Court is expected to invite parties to call oral evidence to resolve the conflict. See Akinsete v. Akindutire (1966) 1 ANLR p.147. — O. Rhodes-Vivour JSC.
⦿ FILING MULTIPLICITY OF SUITS IS AN ABUSE OF COURT PROCESS
It becomes clear that filing this suit on the same facts, in which the Appellant asks for the same reliefs as in Suit No.W/61/2000 amounts to an abuse of process. It amounts to an abuse of process when a party improperly uses the judicial process to the annoyance of the other party. Proceedings that are not bonafide, that are frivolous vexatious, or oppressive. See Saraki v. Kotoye (1992) 9 NWLR (Pt.264) P.156, Amaefule v. State (1988) 2 NWLR (Pt.75) p.156, Agwasim v. Ojichie (2004) 10 NWLR (Pt.882) p.613. My lords, instituting multiplicity of actions on the same subject matter against the same opponent on the same issue would amount to an abuse of process. Suit No.: W/61/2000 and this suit are on the same subject matter against the same Respondent on the same issue. Filling this suit amounts to an abuse of process as the Appellant discontinued suit No:W/61/2000 because she was satisfied with the furnishing of her house by the Respondent. — O. Rhodes-Vivour JSC.
⦿ EFFECT OF NOTICE OF DISCONTENANCE
A notice of discontinuance is a voluntary termination of a suit by the Plaintiff or complainant. When issues that gave rise to a suit are no longer in dispute, that is to say parties have settled. Terms of settlement are filed in Court to bring the suit to an end. A Notice of discontinuance may in certain circumstances have the same effect as terms of settlement. Filing a Notice of discountenance in suit No.W/61/2000 is a clear indication that the Appellant was no longer interested in pursuing her claims and this is so because the Respondent complied with her request by duly furnishing her house with amenities to her satisfaction. The Notice of discountenance filed in suit No.W/61/2000 has the same effect as if a terms of settlement was filed. Either of the processes shows that the Appellant has waived her rights to claim the same reliefs on the same facts in this suit. She is estopped from relitigating. — O. Rhodes-Vivour JSC.
⦿ ISSUE RAISED IN RESPONDENT’S BRIEF IS NOT AN ISSUE RAISED SUO MOTO
An issue raised by the Appellant in his Reply brief (the incompetence of Respondent’s Notice) which the Respondent did not bother to respond to in Court is not an issue raised suo motu. The Respondent denied himself fair hearing by not responding to the Appellants submission on the issue. Consequently, the Respondent’s Notice to vary was not raised suo motu. — O. Rhodes-Vivour JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Olabode Rhodes-Vivour, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
A. Haruna Esq.
⦿ FOR THE RESPONDENT(S)
M. N. O. Olopade Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
