Judicial Attitude Towards Abuse of Court Process: An Appraisal
Akinola O. Bukola* and Adure Uzo-Peters*
Abstract
This paper is an anatomy of the Nigerian concept of abuse of court process. The paper attempts to define the concept of abuse of court processes within the confines of judicial pronouncements by the Nigerian courts. The paper further exposes the diverse acts which culminate in such an abuse of court processes in Nigerian jurisprudence. The paper also analyses the response of the Nigerian courts and the measures hitherto taken to nip it in the bud. In order to please a client, lawyers file all manner of court processes in order to stall the major ends of justice. This is the practice nowadays and it is ridiculous because it negates the spirit and the intent of the Rules of Professional Conduct for Legal Practitioners 2007. This paper will be incomplete without the appropriate recommendations on practical steps which must be taken by all stakeholders in the justice sector in the nearest future to tame the monster of abuse of court process. Deliberate delays and constant application for adjournment are crafts designed by lawyers particularly in Nigeria to frustrate the ends of justice. There must be a way out. This paper recommends legislative measures to regulate the conduct of the bar and bench towards a better administration of justice devoid of abuse of court process.
1. Introduction
One recurring factor that increasingly deprecates the confidence in the Nigerian justice system is the widespread abuse of court processes by legal practitioners and their clients. This challenge has been far worsened by the attitude of several members of the bench who connive with legal practitioners thereby posing a threat to the proper administration of justice in Nigeria.
The menace of abusing court processes arise in many ways through diverse acts and omissions. It is generally conceded that where the use of a thing is unknown, its abuse is inevitable. The perception of
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* Akinola O. Bukola, Lecturer, Nigerian Law School, Enugu Campus; LL.B (Hons) B.L, LL.M, omoniyi.akinola@lawschoo.gov.ng;
* Adure Uzo-Peters, LL.B (Hons.), (Ibadan), B.L, azuzopeters@gmail.com
many individuals, including lawyers that the court is faceless machinery for oppression, revenge and status definition has clouded the major purpose of the court process, which is to provide an unbridled access to justice.
Generally, the coinage “court process” refers to writs issued by the court, like a summons to appear in court to defend oneself; a warrant, a court order, a subpoena. It also means all the acts of a court, from the commencement of an action to its conclusion; in other words, it inheres the court’s regular method of operating, the conventional course of events in the administration of justice, respecting the rights of every person, giving him the time and the right to defend himself without interference and without fear that the law will be unfair to him.
Abuse of process is a common law intentional tort. Abuse of process is the improper and tortuous use of a legitimately issued court process to obtain or procure a result which is either unlawful or beyond the scope of the process. It is also termed abuse of legal process; malicious abuse of process; malicious abuse of legal process; wrong process; and wrong process of law.
A cause of action for abuse of process may lie in situations where a criminal proceeding is brought against a defendant for improper motives. Abuse of court process is occasioned mostly where there is an abuse of right of action, which entails a situation where litigants and their advocates pursue cases maliciously despite the fact that they are convinced their actions have no basis in law. Such a feat may also be occasioned where lawyers engage in champerteous actions calculated to annoy, irritate or delay in order to deny a judgment debtor the fruits of his judgment or to render the judgment nugatory.
Furthermore, the court process is patently abused where notorious criminals with the assistance of their lawyers obtain court immunity to restrain the police or other special prosecutors from investigating or prosecuting them. Other devices include frivolous election petitions by political big wigs, the filing of cases aimlessly which lack any merit but done to place a clog in the wheel of justice, the use of the appeal process as delay tactics and the connivance of members of the bench who misapply their judicial powers with obtuse disregard for the rule of law.
2. Judicial Definitions of Abuse of Court/Judicial Process
The Nigerian court in Camac Int’l Ltd & Ors v C.P.N. Ltd[1] stated that the concept of abuse of judicial process is imprecise, it involves circumstances and situations of infinite variety and conditions. In the criminal case of Amaefule v State,[2] the court held that abuse of court process is a term generally applied to a proceeding which is wanting in bonafides and is frivolous, vexatious or oppressive. It can also mean abuse of legal proceeding or improper use of legal process. It always involve some bias, malice, some deliberations, some desire to misuse or pervert the system of administration of justice.[3]
It is apparent from the above that the usage of abuse of court process is applicable in both civil and criminal proceedings. The notion is generally different from instituting a suit in a court or tribunal where the litigant knows that the court or tribunal expressly lacks jurisdiction. But there are occasions when it may be indirectly an abuse of court process especially where it is known beforehand that the court lacks jurisdiction.
Abuse of court process can also be defined as an action so unfair and wrong that the court should not allow a prosecutor/plaintiff to proceed with what is in all other respect a regular proceeding. In the case of Johnson v Girdwood & Co.,[4] it was held that abuse of court process involves misuse of the public right of access to the court. In some instances, the images behind the mask of this charade called lawsuitsare crooked politicians and corporate criminals who deliberately pay the counsel to just ‘institute something’ to stall the act about being performed by the other party. Some judges who do not want to be left behind in the melodrama also use the opportunity presented by the abuse of legal process to jostle for media attention by engaging themselves in unethical judicial activism that have negative consequences on the rule of law and democracy. It is our submission that to unlawfully grant an order of perpetual injunction restraining a law enforcement agency such as the police or the Economic and Financial Crimes Commission from investigating a crime is not only judicial absurdity but a judicial recklessness.
3. Reasons for Abusing Court Process.
One of the reasons why some lawyers abuse the legal process by filing these frivolous lawsuits is because of the inadequacy of information available to the general public on how to file grievances against erring lawyers.
The compromising attitude of some judges and the seemingly lethargic attitude of the Legal Practitioners Disciplinary Committee who are entrusted with the duty of ensuring that the public is protected against attorneys clogging the courts with inappropriate or frivolous claims account for some cases of abuse.
4. Abuse of Court Process and Malicious Prosecution Examined
Abuse of process is quite different from malicious prosecution, in that, abuse of process typically does not require proof of malice, lack of reasonable and probable cause or a termination favorable to the plaintiff, all of which are essential to a claim of malicious prosecution. “Process,” as used in this context, includes not only the “service of process,” i.e. an official summons or other notice issued from a court, but means any method used to acquire jurisdiction over a person or specific property that is issued under the official seal of a court.
Typically, the person who abuses court process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal prosecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of “process” considered to be capable of abuse.
But abuse of process is similar to the action for malicious prosecution in that both actions are based on and involves the improper use of the courts and legal systems. The primary difference between the two legal actions is that malicious prosecution concerns the malicious or wrongful commencement of an action, while, abuse of court process concerns the improper use of the legal process after process has already been issued and a suit has commenced.
In its technical sense, the service of process itself in the form of a summons could not be considered abuse of process under the right circumstances, e.g. fraudulent or malicious manipulation of the process itself. In the circumstance, to impersonate a party in court and prepare a proof of service when the actual party against whom the judgment would be executed against is absent, it is submitted amounts to an abuse of court process. In the aforementioned instance, judgment could be taken behind the party. In malicious prosecution, the wrongful act is the actual filing of the law suit for improper and malicious reasons, whereas in abuse of the process, the legal process is misused for some purpose which is considered improper under the law.
For instance, an action for abuse of process may lie in situations where a criminal proceeding is brought against a defendant for improper motives. For example, inLader v Benkowitz,[5] a pleading was held to state a good cause of action for abuse of process when it alleged that defendant a hotel owner had threatened to have the plaintiff arrested on a warrant issued at the instance of the defendant on a charge of disorderly conduct. The allegedly improper motive was the hotel owner’s underlying purpose of compelling plaintiff to pay a bill owed for plaintiff’s alleged rental of a room in defendant’s hotel. It was claimed that through the unlawful use of the warrant and threat of arrest, the defendant was able to obtain the sum of money allegedly owed by plaintiff.
In denying the defendant’s motion to dismiss the suit, the court admonished that it was sufficient to show that regularly issued process had been used to accomplish an improper purpose in order to set forth a cause of action for abuse of process. The fact that the plaintiff had yielded to defendant’s threat to have her arrested under the warrant did not diminish the cause of action, because it was clear that the plaintiff was actually been arrested for the purpose of compelling her to pay the cost of the room.
Analyzing the negative effect of abuse of court process on the rule of law intheBrooks case, Sir Roger Ormrod[6]held inter alia that:
It may be an abuse of process if the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or on the balance of probability the defendant has been or will be prejudiced in the preparation or conduct of his defense.
5. The Hydra headed nature of Abuse of Court Process
A litigant has no right to pursue pari–passu two processes which will have the same effect in two courts at the same time with a view to obtaining victory in one of the processes or in both. The court has stated in Agwashim v Ojichie[7] that the two processes are in law not available to the litigant simultaneously, only one is available and the choice of which of the two is exclusively that of the litigant. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks.
Furthermore, abuse of court process may occur in some other ways such as:
- Instituting a multiplicity of actions on the same matter against the same opponent on the same issue;
- Instituting a multiplicity of actions on the same matter between the same parties;
- Instituting different actions between the same parties simultaneously in different courts even though on different grounds; or
- Where two similar processes are used in respect of the exercise of the same right such as a cross appeal and a respondent’s notice[8].
The court in Alhaji Saadu Olutinrin v Alhaji Hanafi Agaka[9] had stated that it is an abuse of court process when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same issue. It is submitted that it is also an abuse of judicial process for the plaintiff to file a Notice of discontinuance so that he may have his way in a new suit . An abuse of court process it is further submitted transcends the issue of res judicata.
In summary, the features of abuse of court process are court processes lacking in bona fides, frivolous, vexatious or oppressive use of legal process, some deliberateness or some desire to misuse or pervert the system, so also is instituting multiplicity of actions on the same subject matter against the same party to cause irritation or annoyance to the other party.
6. Abuse of Court Process and Application for Stay of Execution or injunction Pending Appeal
Stay of execution and injunction pending appeal are tools in the hands of the legal practitioner to halt the execution of a judgment or the continuance of an act as the case may be. In most situations, it is granted so as to preserve the res, i.e. the subject matter of a dispute in order not to render the judgment of the appellate court nugatory or foist upon the court a situation of helplessness.[10] Where these equitable reliefs are wrongly applied, they in some cases confine the cases at hand to eternal abandonment. It has been held that filing the equitable relief of stay of action or injunction pending appeal at an appellate court while the order has neither been granted nor refused at the lower court is an abuse of court process[11]. Most times, counsel files these processes to frustrate the other party even when such a counsel knows that there is no substance in the appeal or that the likelihood of succeeding on appeal is very remote.
7. Pre-Action Notice and Abuse of Court Process
Pre-action notices are usually provided for in statutes of some government agencies or institutions.[12] The purpose of a pre-action notice is to enable the person or agency that is to be sued to prepare for an action or resolve the conflict without use of court processes but with alternative dispute resolution mechanisms. Such notices do not amount to abuse of court processes properly so called but may pose a restriction of access to the courts.[13]
8. Abuse of court process distinguished from contempt of court
The distinction between the above concepts would be drawn from the response of the courts to the two irregularities. Once a court is satisfied that the proceedings before it amounts to an abuse of court process, it has the right and in fact the duty to invoke its judicial powers to punish the party which is in abuse of its processes. Such power is often exercisable by a dismissal of the action constituting abuse.[14]
On the other hand, contempt of court is an offence which is sui generis. It is a disregard, disobedience or interference with court proceedings. While abuse of court process centres on frivolous court processes calculated to annoy or delay, contempt relates to behavior and disrespect for the court i.e. using unbecoming language while addressing a judge or simply flouting court orders. Abuse of court process is remedied by focusing on the court process being abused and not the person abusing it; however in dealing with contempt in facie or ex facie curiae the contemnor is punished and may be committed to prison.
In both case the rationale for the courts reaction is to project the dignity of the court and prevent undue interference with the administration of justice.
9. Abuse of judicial process distinguished from abuse of judicial powers
Undeniably, the judicial process is the subject of judicial powers. Judicial powers do not operate in vacuo; hence, without judicial processes the legislative instruments creating judicial powers would be nothing but paper tigers.
Nonetheless, the distinctions between the abuse of these two phenomena are fundamental. While abuse of judicial process may only be committed by legal practitioners and their clients; judicial officers, who are the wielders of judicial powers are those who abuse judicial powers. It would amount to abuse of judicial powers where a judge knowingly and intentionally presides over a matter to determine it without jurisdiction or for a judge to give an order or impose a sanction which by law he cannot do or to use his wide discretion unjustly or indiscriminately.
Cumulatively, both the abuse of judicial process and that of judicial powers deprecate the justice system in any country but the latter has a peculiar dimension in that it decimates the very foundation and colossus of justice and converts justice from a protector to an institutional predator of the weak and a custodian of the interest of the strong.
10. Judicial Attitude towards Abuse of Court Process
Various courts have now devised means of jettisioning the concept of technical justice to doing substantial justice. The Supreme Court in Agwashim v Ojichie[15] states that it has an inherent jurisdiction to prevent an abuse of court by frivolous or vexatious proceedings, either in the Supreme Court or in any other court which is brought before the court.
In furtherance of the above, the courts in the determination of whether an abuse of the judicial process has occured, will consider the content of the first process vis a vis the second one (process) to see whether they are aimed at achieving the same purpose. In essence, the overriding criterion in determining whether or not a suit is an abuse of court process is the nature of the use the Plaintiff or Applicant had put the court process.
The court in Globe Motors Holdings Ltd v Honda Motor Co. Ltd[16]frowned at the attitude of litigants using its freedom of access to court to circumvent the cause of justice. An instance of abuse of the freedom of access to court lies in the use of an order of injunction to restrain a party from taking or prosecuting action in the court in which the party is seeking such injunction to frustrate a lawful or statutory duty of another party.
The practice in the fourth and fifth Republics was that in electoral matters, election cases and appeals took many years before conclusion. In most cases, the respondent (incumbent) would almost serve out his tenure when final judgment in election petition appeals was delivered. In an attempt to remedy this unfair situation, the legislature introduced section 285(6) and (7) of the 1999 Constitution of the Federal Republic of Nigeria as amended. The subsections provide as follows:
(6) An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
Subsection (7) of the same section under consideration states:
An appeal from a decision of the election tribunal or court shall be heard and disposed off within 90 days from the date of the delivery of judgment.
In effect, once an election petition is filed, or an appeal is lodged against the decision of an election tribunal, the petitioner/appellant, the respondents themselves as well as the tribunal itself would be counting days and dates because where the matter is not determined within the stipulated period, the whole trial is vitiated. In the light of the above provisions, it is my humble view that to frustrate the ends of justice within the 180 and 90 days provided by the 1999 Constitution as amended by way of frivolous applications having known that the Supreme Court in recent times has been very strict on the observance of this unique provision is condemnable.
It is noteworthy to state that abuse of court process lies more in the manner of use rather than in the form of the action or the particular process employed by the plaintiff. Where the aim of the plaintiff is to resort to a particular process of court or the entire suit is to inflict any inconvenience on the defendant or interfere with the administration of justice, it is then that the process employed or the suit commenced by the plaintiff would be rightly adjudged an abuse of judicial process.
11. Effect of Abuse of Court Process
The abuse of court process has in most cases led to situations where judicial decisions are influenced by extraneous considerations such as political equations and relationships, economic factors and power structures. Hence, even the most brilliant legal analysts may not be able to predict the outcomes of any case no matter how well cut and dry it is thereby tinkering with the doctrine of predictability and fairness which the rule of law imposes.
The credibility and quality of judges is also questionable. As a result, there are dents in the effective dispensation of justice in the country. We cannot check the menace of frivolous litigation if we do not have an improved quality of judges. Poor dispensation of justice increases opportunistic litigation and judicial entrepreneurship. The way and manner justice is dispensed is a function of the quality of the bench. Only recently, the Nigerian Bar Association while inaugurating its committees in Abuja, lamented the state of the judiciary in Nigeria when it said, quoting from the National Judicial Council that:
…over the past seven years, only 20 per cent of the judges are ranked as average or fairly good. The rest are simply not pulling their weight. The assessments are from empirical records.
A high percentage of the judges in Nigeria are either not fairly good or below average. In the words of Justice Akinjide Ajakaiye:
For the judiciary to be able to play the sacred role assigned to it very well, it must ensure that both the appointers and appointees to the Bench are of proven integrity and most importantly those who have the fear of God in them. Appointments should not be based on sentiments, political considerations neither should it be at the whims and caprices of the appointing authorities. Merit should no longer be sacrificed for mediocrity.
The quality decision therefore, is affected by judicial mediocrity. In the words of Lord Denning:
When a judge sits to try a case, he himself is on trial before his fellow countrymen. It is from his behavior that they will form their opinion of our justice system.
It is only when the bench begins to frown at this practice that the interest of the public can be better served and the profession can be put in high esteem.
As it is obtainable in the United States, both Federal and State rules should require attorneys to always perform due diligent investigation concerning the factual basis for any claim or defence. Even though jurisdictions differ on whether a claim or defence is frivolous, attorneys should always act in good faith. Because a frivolous defense or claim wastes the courts and the other parties’ time, resources and legal fees; as such sanctions should be imposed by a court upon the party or the lawyer who presents the frivolous defence or claim. The law firm may also be sanctioned. In the words ofAttorney Daniel B. Evans:
When a judge calls an argument “ridiculous” or “frivolous,” it is absolutely the worst thing the judge could say. It means that the person arguing the position has absolutely no idea of what he is doing, and has completely wasted everyone’s time. It doesn’t mean that the case wasn’t well argued, or that judge simply decided for the other side, it means that there was no other side. The argument was absolutely, positively, incompetent. The judge is not telling you that you were “wrong.” The judge is telling you that you are out of your mind.
The presence of abuse of legal process in any legal system also makes the operation of the rule of law very vulnerable, subjective, permeable and outcomes largely biddable. Instead of being an integral part of the success of democracy, abuse of court process can easily turn the judiciary into an institutional constraint to democracy, foreign investment and economic hardship.
The following have been identified as the effects of abusing court processes:
- It leads to technical justice
- It erodes confidence in the judicial process
- It could be contemptuous of the court
- It is time wasting
- It is a waste of resources
- It diminishes public respect for the judiciary and judicial officers
- It undermines the essence of governance
- It breeds contempt and disdain for legal practitioners
Counsel who are ministers in the temple of justice should also not allow themselves to be used for whatever monetary gain they stand to benefit. Lawyers must stop being their own worst enemies when it comes to their public reputations and the public perception of their roles in the system. The rules of professional conduct for legal practitioners in Nigeria provides under its rule 30 as follows:
A lawyer is an officer of the Court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice. In the light of this provision, a counsel should at the interview and counseling stage with his client advise him that it may earn him his calling if he files a frivolous suit in court. Where this is done by a lawyer, clients who deliberately want to frustrate the ends of justice would desist from such inglorious acts.
However, the Courts must be sensitive to the need to remain open to all who seek in good faith to invoke the protection of law. A case that lacks merit is not always or often frivolous. Conversely, the Courts must not be obliged to suffer in silence, the filing of unsubstantiated, groundless and unacceptable arguments that present no colorable claims but designed only to delay, obstruct, or incapacitate the operations of the courts or any other governmental authority. The public holds lawyers in high esteem and their views are accorded similar regard. Therefore, it is unacceptable for lawyers to consider or think of their services as just other goods in the economy by rushing to the Courts regardless of how speculative their clients’ action may seem and how injurious such actions may be to the rule of law and effective dispensation of justice.[17]
12. How to tame the monster called Abuse of Court Process
In order to curb the menace of abuse of court process, our rules of court must be reviewed to empower the court to immediately detect a process which is deliberately filed and served to frustrate the ends of justice.
Secondly, the court officials must be alive to their duties at the point of filing the process to know through a computerized procedure when a matter has been filed, served, heard and determined. Once this is discovered on the face of it, such a matter ought not to scale through the pre-trial stage of its proceedings. This would further strengthen the judicial process and our courts would not be a ready tool in the hands of busy body litigants whose major aim is to look for every available avenue to frustrate the court and the opposing party.
The underlying factor in adjudication is the private and public interest to the extent that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.
As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. The eagle eye of the court system must be properly applied, and whatever the legitimacy of its descent, the rule has in our view a valuable part to play in protecting the interests of justice.
There must be a societal re-orientation of the stakeholders in the justice sector towards full implementation of the multi-door courthouse in our judicial administration in order to reduce the bulk of case in the courts. In this instance, a party who suffers from a deliberate application for stay of proceedings and his means of livelihood lies in the res being tied down may use any of the multi doors of alternative dispute resolution to accelerate the ends of justice instead of being tied down by actions lacking good faith.
Delay in the administration of justice is also a catalyst towards promotion of abuse of court process. This is because, some lawyers know too well that before the frivolous action filed is heard, the res may be destroyed or the doctrine of lis pendens applied so that a bona fide cause of action is swung to sooth their purpose either way. To reduce the congestion of our courts, more courts are needed and more legislative interventions in form of constitutional amendment particularly in instances where the constitution has prescribed the number of judges to be appointed in a hierarchy of court. The number ought to be increased in order to allow for speedy determination of cases brought before such courts.
13. Conclusion
The concept of abuse of court process has been examined, its effects duly highlighted and recommendations made towards curbing the menace. At its heart, the issue of imposing sanctions against lawyers that file frivolous cases is one of protecting the public from the harmful effects of unnecessary litigation that tasks the taxpayers’ money. Basically, our legal procedure as it affects case management is flawed and at least some measure of responsibility for those flaws rests with attorneys that use the system to frustrate due process or to prevent others from reaping the fruit of their litigation.
There must be legislative intervention on the part of the legislature to cloth the court with the garment of seeing through the lens and arrest the abuse even where such facts are place in an affidavit in support of a preliminary objection that the action filed constitutes an abuse of court process. In our humble view, our judges have overstretched the concept of fair hearing to accommodate all manner of frivolous actions and the attitude of arbiters to abuse of court process has been more of condoning the abuse and less of condemning same. In Nigeria, there must be positive attitudinal change towards abuse of court process by all and sundry. The present attitude towards this menace under dissection is to our mind highly insufficient.
[1] (2006) 13 W.R.N. 56.
[2] (1988) 4 NWLR (pt. 91) 156.
[3] Edet v State (1988) 4 NWLR (pt. 91) 772.
[4] (2000) UKHL.65.
[5] 188 MISC. 906, 66 N.Y.S. 2d. 713 per McNally J. at 291
[6] Quoted in G.O. Ossaman; “The Doctrine of Abuse of Process of the court: It’s Impact on the Principles of Extradition without a Conventional Obligation & of Speciality” The Liverpool Law Review, Vol. xvi (i) 1994, p. 68.
[7] (2004) 10 NWLR (PT 882) 613
[8] Ibid.
[9] (1998) 6 NWLR (pt. 554) 366
[10] Vaswani Trading Co. v Savalakh & Co (1992) 12 SC 77.
[11] UBA v Mode (2000) 1 NWLR (pt. 640) 250.
[12] See Section 12 (2) Nigerian National Petroleum Corporation Act.
[13] Amadi v NNPC (2000) 10 NWLR (pt. 674) 76
[14] Okoye v Eghodaghe (2000) 1 NWLR pt 640
[15] Supra, note 7 at 625.
[16] (1998) 5 NWLR (pt. 550) 373 at 381 – 382
[17] See the cases Ikine & Ors. v Edjierode Ors.(2000)NSCOR 348, Maya v Oshuntokun (2001)11 NWLR (pt.723)62 at 67.