CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The Appellant was solicitor to the Respondents in Suit No. ID/49/84 which he took over in the year 2009 after his father died. 

Appellant' s father had before then been the counsel representing the Respondents in the matter which was about ownership of a large parcel of land (102 Acres). After taking over the matter, the Appellant entered into a retainership agreement dated 19th January, 2012 with the Respondents to the effect that upon successful prosecution of the matter and judgment being eventually delivered in their favour, they will assign one acre out of the 102 acres of land to the Appellant. Judgment was entered against the Respondents by the trial Court but the Appellant prosecuted an appeal against the decision of the trial court successfully at the Court of Appeal which entered judgment in their favour on 20th March, 2014.

However, the losing party at the Court of Appeal further appealed to the Supreme Court and that matter which is still pending in that Court has the Appeal No. SC.343/2014. It appears that the Appellant is no longer the counsel conducting that matter on behalf of the Respondents, but there is evidence that he took some initial steps on behalf of the Respondents herein in that matter at the Supreme Court.

The Appellant subsequently brought the present action Suit No ID/404GCM/2014 at the High Court of Lagos State, Ikeja Judicial Division which he commenced by Originating Summons seeking to enforce the terms of the said retainership agreement against the Respondents.
      
He claimed the following reliefs in the Originating Summons:
1. A declaration that the defendants are in breach of the Retainership Agreement between the parties dated 19/01/2012.
2. A declaration that the defendants are obligated to assign to the claimant the one acre of land situate at Tigbegbe Street, Ijaiye Ojokoro Lagos State and shown on survey plan No LA/4/1268/07A/2011 dated 14/10/2014 in lieu of the claimant's professional fee for the successful prosecution of suit No ID/49/84 and Appeal No CA/L/967/2012 as stipulated in clause 3 of the Retainership Agreement dated 19/01/2012.
3. A mandatory order compelling the defendants to assign the said parcel of land to the claimant forthwith.
4. An order for possession of the said parcel of land.
5. An order of perpetual injunction restraining the defendants, their servants, agents and privies from selling, leasing, assigning, alienating or trespassing on the said parcel of land.
6. N2,000,000.00 (Two Million Naira) being special and general damages for breach of the Retainership Agreement dated 19/01/2012.

In defence of the action, the Respondents in addition to filing a Counter-Affidavit and written address in support to the originating summons also filed a preliminary objection challenging the competence of the action on these grounds:
1. The cause instant was deceptively filed by the Claimant as a result of concealment of material facts, which if disclosed, would have shown that the Court instant lacks jurisdiction.
Particulars of deception and concealment of material facts.

Throughout the length and breadth of the processes in this Suit, the Claimant never mentioned (even once) that the Res he is laying claim to in this Suit (being One (1) acre of Land) situate at Tigbegbe Street, Ijaiye, Ojokoro, Lagos State is part of the vast tract of land measuring (one hundred and two (102) acres, which is still a subject of Appeal (as Suit No. SC/343/2014) in the Supreme Court of Nigeria.
2. The said appeal is still subsisting as the Supreme Court has neither struck it out nor dismissed it, nor has the Appellant therein filed a Notice of Discontinuance nor has the appeal been determined either by default or on the merits, hence to sustain this Cause is to overreach the Supreme Court.

The trial Court took argument on both the preliminary objection jointly and thereafter delivered its ruling on 10th February, 2015 sustaining the objection and consequently striking out the matter. It did not consider the merits of the claims of the Appellant.

Being dissatisfied the Appellant appealed to this Court on three grounds of appeal and has also formulated three issues for determination in his brief of argument as follows:
1. Whether the learned trial Judge was right in striking out the suit for being abusive of judicial process in view of the pending appeal in the Supreme Court No. SC.343/2014 -distilled from ground 1.
2. Whether the trial High Court was right in holding that it lacked jurisdiction to interpret the Retainership Agreement between the parties and what is the true and correct interpretation that the Court of Appeal should give to the said agreement (particularly clause 3 thereof) in the circumstances - distilled from ground 2; and
3. Whether the Respondents were not in breach of the Retainership Agreement dated 19/01/2012 as to entitle the Appellant to the reliefs sought in this suit - distilled from ground 3.

The Respondents on their part formulated the following issues for determination:
1. Whether in view of the pending appeal in the Supreme Court (SC.343/2014) being an appeal from CA/L/967/2012 (itself an appeal from Suit No. ID/49/84 - the root of the Retainership Agreement), the learned trial Judge at the Court below, was in order or erred to have sustained the Respondents Preliminary Objection.
2. After answering the above, then the consequential orders from this Court.

I will decide this appeal by considering the issues formulated by the Appellant, starting with issue one. The result of that issue will determine whether the other issues should be considered.
ISSUE ONE:
Whether the learned trial Judge was right in striking out the suit for being abusive of judicial process in view of the pending appeal in the Supreme Court No. SC.343/2014 -distilled from ground 1.

APPELLANT'S ARGUMENTS:
Learned counsel for the appellant on the above issue referred to his claims at the lower Court and the finding of the trial Court in its ruling that grating his claims will overreach the Supreme Court in whatever decision it will eventually arrive at in SC.343/2014 submitted that the finding of the trial Court is erroneous as the 'res' of this suit is not 'a parcel of land' but the Retainership Agreement. He argued that, that was the justification for the use of originating summons procedure in bringing the action. He contended that the trial Court deduced the subject matter of the action by reference to the objection rather than the claims and submitted that it was wrong as it is the claims of the plaintiff that donate jurisdiction to the Court, citing cases in support. He further argued that the fact that the action was assigned to the general civil division of the trial Court instead of the lands division testifies that it is not a land matter. Counsel argued that the subject matter of the action is breach of the Retainership Agreement and that the claims touching on land are ancillary to the main claims. He referred to dictionary meanings of the word 'ancillary' and submitted that his reliefs 3 to 6 are ancillary claims. Counsel then submitted that the trial Court had given undue preference to the ancillary reliefs and thus misapplied the doctrines of lis pendens and abuse of Court process when the issue raised was for construction of documents is not same with the subject matter before the Supreme Court.

Learned counsel argued that abuse of Court process simply means that the process of Court has not been used properly and is lacking in bona fides, etc. he referred to Saraki v. Kotoye (1992) 9 NWLR (pt.264) 156 at 188-189: Idowu v. FRN (2012) 11 NWLR (pt. 1312) 441 at 458.

It was then submitted by counsel that though by definition abuse of process may be fluid and imprecise, it can't be applied to this matter as the subject matter and parties are not same with the appeal before the Supreme Court. Counsel argued that the scenario painted by the trial Judge is hypothetical and speculative and that Courts ought not to engage in speculations, citing Shugaba v. UBN Plc (1997) 4 NWLR (pt.500) 481 at 490: Adisa v. State (1991) 1 NWLR (pt.168) 490 at 500. He submitted that the decision of the trial Court is perverse referring to SPDC Nig Ltd v. Emehuru (2007) 5 NWLR (pt.1027) 347 at 367: Larmie v. DPMS Ltd (2005) 18 NWLR (pt.958) 438 at 459: Faloughi v. First Impressions Cleaners Ltd (2014) 7 NWLR (pt.1406) 335 at 369: Udengwu v. Uzuegbu (2003) 13 NWLR (pt.836) 136 at 152.

RESPONDENTS' ARGUMENTS:
Learned counsel for the Respondents in reply submitted that the purpose of preliminary objection is to terminate proceedings at one fell swoop, citing Efet v. INEC (2011) LPELR 8019 SC: APC & Ors v. In Re: CPC & Ors. (2014) LPELR 24036 SC: Muofunanya v. Nwadiogbu (2013) LPELR 21218 CA: Udoeka & Ors. v. Isikoboo Ors. (2012) LPELR 9690 CA.

Counsel argued that jurisdiction is the life blood of adjudication as no matter how well conducted without jurisdiction, proceedings are a nullity and that consent by parties cannot confer jurisdiction on Court. He submitted that if proceedings had been conducted without bringing to

the notice of the trial Court that the appeal is still pending before the Supreme Court, the whole process would be rendered a nullity. He said that the Appellant never denied that appeal No SC/343/2014 is still pending. He submitted that they align with the trial court's decision that it lacked jurisdiction to try the matter. He stated that the Retainership Agreement is tied to Suit No. ID/49/84 which he further traced to the appeal before the Supreme Court and submitted that the said one acre of land is to be excised from the 102 acres which is the subject of litigation before the Supreme Court. He stated that the Appellant is aware of this yet he is saying that the subject matter of this case is mere interpretation of the Retainership Agreement. He stated that the Appellant has ventured into lengthy, needless and irrelevant propositions and exhibit of cases which are unhelpful in assisting the Court.

APPELLANT'S REPLY:

The Appellant filed a Reply Brief wherein he stated that the Respondent did not relate their issues to the grounds of appeal filed. He stated that the Respondents' issue B is couched in an unreasonable manner. He submitted that issues not formulated from any valid ground of appeal are incompetent.

He submitted that the traditional role of a Respondent is to support the decision of the Court below, but the Respondent has not quoted or referred to any reasoning of the trial court he wants the Court of Appeal to support. He submitted that under Order 18 Rule 4(2) of the Court of Appeal Rules 2011, the Respondents' Brief shall answer to the material points of substance contained in the Appellant's Brief and show why the appeal must be dismissed, and argued that the Respondents' Brief failed to meet that requirement. He urged that the Respondents' issues be struck out and that the appeal be determined in his favour.

RESOLUTION:
I will begin by addressing the complaints of the Appellant against the Respondents' Brief. His contention is that the Respondent has not quoted or referred to any reasoning of the trial Court he wants the Court of Appeal to support and that he failed to satisfy Order 18 Rule 4(2) of the Court of Appeal Rules 2011. I must say that the arguments canvassed in the brief filed by the learned counsel to the Respondents may be weak and has not very well

articulated their position, but the argument nevertheless supports the position taken by the trial Court. He has also failed to relate his issues to the grounds of appeal but since I am not adopting his issues for determination of this appeal, I am not going to discountenance them for these short comings. Even if I fail to consider the arguments of the Respondents, in this appeal, that would not automatically result in the success of the appeal as the Appellant has the duty to convince this Court that the position taken by the trial Court is wrong.

The real issue that calls for determination is whether having regard to the claims of the Appellant in this matter and the pendency of appeal number SC.343/2014 before the Supreme Court, this matter constitutes an abuse of Court process as found by the trial Court.

In resolving this issue, the trial Court said in its ruling at page 192 of the records:
"I think with due respect to learned counsel for the Claimant/ Respondent that his argument on that issue is misconceived and the reason for that is not far-fetched. I say this because in touting that line of argument Respondent appears to have forgotten praying the Court for; 'a mandatory order compelling the Defendants to assign the said parcel of land to the Claimant forthwith' as well as 'An order for possession of the said parcel of land' in his 3rd and 4th prayers in addition to other related prayers as can be clearly seen on the face of the originating Summons, the implication of which if considered and either refused or granted by this Court would be not only to overreach the Supreme Court in whatever decision it might eventually reach at the conclusion of the appeal in Appeal No. SC.343/2014 as was rightly argued by Applicants' counsel, but would also be clearly contrary to the time worn legal doctrine of 'lis pendens' which frowns on the dealing in any manner with realty subject to any form of litigation till the final resolution of litigation."

The Appellant has attacked this reasoning by arguing that his reliefs 3 to 6 are not the main reliefs but ancillary claims to his main claim which is for interpretation of the Retainership Agreement.
      
I must say out-rightly that I disagree with the Appellant in this regard. What is the Appellant seeking to obtain, gain or recover by this action? The

answer to this is clear: it is one acre of land out of the one hundred and two acres of land over which this Court gave judgment in favour of his clients in Appeal No CA/L/967/2012 which is still the subject matter of litigation in Appeal No. SC.343/2014 lodged against that decision.

Without going into the merits of this matter so far, the case of the Appellant has been that he is entitled to the one acre of land at the end of litigation and upon judgment being delivered in favour of the Respondents herein in that matter. The Respondents on their part contended that the Retainership Agreement was tied only to the Appellant obtaining judgment in their favour at the High Court and does not extend to the Court of Appeal. In responding to this argument, the Appellant at page 25 of his brief of argument contended that an appeal is regarded as a continuation of the original suit. He quoted Peter-Odili, JSC in Aiyeola v. Pedro (2014) 13 NWLR (pt.1424) 409 at 447 thus:
"....a case on appeal is not new, the foundation is and remains the writ of summons and claim from the Court of first instance, while what is on appeal is a mere continuation sheet."

If  as the Appellant has argued, an appeal is a continuation of a matter, then what the trial Judge is merely saying here is that his case is premature and that until the matter is eventually determined by the Supreme Court, the Court will not be able to adjudicate his claim. Put in another way, the Court is saying that all the facts and circumstances that will constitute the cause of action have not fully occurred hence the action is premature. That is why the Court below did not dismiss his claims but struck them out.

The Court went further to hold that the action constitutes an abuse of Court process. Though the Appellant agrees with the trial Court that the concept of abuse of Court process is fluid and imprecise and involves circumstances and situations of infinite variety and conditions and that its common feature is the improper use of the judicial process by a party in litigation to interfere with due process of administration of justice, in accordance with the decision of the Supreme Court in Dingyadi v. INEC No. 1 (2010) 18 NWLR (pt.1224) 1 at 74 he still contends that his case is not an abuse of Court process.
      
The above statement of law

regarding abuse of Court process by the highest Court of the land is well settled. I agree with the trial Judge that the action of the Appellant in this case was not properly instituted as it was premature. It is clear to me as found by the trial Court that if that Court or even this Court goes ahead to determine the claims of the Appellant herein on his entitlement to an acre of land by virtue of the said Retainership Agreement while the eventual decision of the Supreme Court in Appeal No. SC.343/2014 is being awaited; such decision would have overreached the eventual outcome of the case at the Supreme Court. As the Appellant himself has stated that an appeal is a continuation of the original action, it then means that the said Suit No ID/49/84 is not yet finally resolved, and it is still uncertain who among the contending parties therein is the owner of the 102 acres of land. If this crucial issue is not finally resolved, it will be premature for the trial Court to grant the reliefs sought by the Appellant in this case which include:
3. A mandatory order compelling the defendants to assign the said parcel of land to the claimant forthwith.

4. An order for possession of the said parcel of land.
5. An order of perpetual injunction restraining the defendants, their servants, agents and privies from selling, leasing, assigning, alienating or trespassing on the said parcel of land.

If such orders are granted by the trial Court and eventually, the Respondents herein lost the appeal at the Supreme Court, such orders granted and the jurisdiction of the Court exercised would have been done in vain and it is settled principle that Courts do not act in vain.

Based on the foregoing, I am of the view that the trial Court was right to have struck out the action of the Appellant. The Appellant has made circuitous and very winding arguments in the bid to justify this appeal but I have no doubt that he is not on the right path. Consequently, I hold that this appeal lacks merit. It is hereby dismissed. I make no order as to costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Chinwe Eugenia Iyizoba JCA. I am in total agreement that the suit in the lower Court and in this Court as it were, is a little premature. The retainership agreement can only come into play when the Respondents have won their case in the Supreme Court and the 102 acres granted to them. Before then, the Appellant's suit is premature and presumptuous.

The retainership agreement can only come to play when the Respondents succeed at the Supreme Court.

For this and the more robust arguments in the lead judgment I too find the appeal lacking in merit. It is therefore dismissed. I also make no order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the judgment written by my learned brother, Chinwe Eugenia Iyizoba, J.C.A., with which I agree with nothing extra to add.

?Counsel

Appearances

O. Oyewo, Esq. (in person) For Appellant
Sunny Awonuga, Esq. with him, A. Ojeledi (Miss) For Respondent

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