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RULING ON APPLICATION FOR DETERMINATION OF PRELIMINARY ISSUES AS SET DOWN FOR AN ORDER TO DISMISS PLAINTIFFS’ ACTION AS AN ABUSE OF THE COURT’S PROCESS PURSUANT TO ORDERS 11 RULE 18 & 33 RULES 3 & 5-
The plaintiff instituted this action against the defendants for the reliefs endorsed on the Writ of Summons.
Both defendants entered conditional appearance through their lawyers.
They subsequently filed their defence and counterclaim.
During directions, the court adopted the issues set out in the plaintiff’s application for direction and additional issues filed by the defendant.
It is on these bases the 1st Defendant/Applicant has brought this instant application before this Court praying for leave to file for determination of issues 1(i) and 1(j) as set down by way of preliminary legal argument and consequent upon the determination for an order to dismiss the Plaintiff’s action as an abuse of the Court’s process pursuant to Orders 11 Rule 18 and Order 33 Rules 3 and 5. According to the applicant, their counsel filed additional issues for direction which includes; i. Whether or not the face of the judgment in Suit No. BL 175/2006 over the disputed land, the instant action amounts to relitigating the same matter involving the same parties as in Suit No. BL 175/2006. ii.
Whether or not the instant action constitutes an abuse of the court process and should therefore be struck out as such.
The applicant believes that it has become necessary to set down the aforementioned issues for preliminary legal argument as its determination may substantially dispose off this action and render the trial of this case unnecessary.
Also, the applicant submits that the instant action has been instituted by the plaintiffs in utmost bad faith and is clearly an attempt by them not only to circumvent the rules but also to use the back door to avoid the binding judgment given against them in their previous Suit No. BL 175/2006. Thus, this suit is an abuse of the court process.
The applicant attached the following exhibits to their application; Writ of Summons filed by the 1st Defendant as plaintiff in Suit No. BL 175/2006 (Exhibit ‘A’), Joinder application filed by the 2nd Defendant on the 23rd day of June 2011 (Exhibit ‘B’), Statement of Defence of the 2nd defendant herein in Suit No. BL 175/2006 (Exhibit ‘C’), Judgment dated 23rd day of June 2014 in Suit No. BL 175/2006 (Exhibit ‘D’) and Notice of Appeal filed on 2nd September, 2014 by the 2nd Defendant herein (Exhibit ‘E’)