ONYEAMA v. MOHAMMED (2020)

ONYEAMA v. MOHAMMED

(2020)LCN/15292(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/A/489/2019

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

MR GEOFFREY J. ONYEAMA APPELANT(S)

And

NASSER KASIM MOHAMMED RESPONDENT(S)

RATIO

WHETHER OR NOT THE NIGERAN COURT CAN AWARD A CLAIM IN FOREIGN CURRENCY

It is instructive to note that the Apex Court has held in a plethora of cases that a Nigerian Court can award a claim in foreign currency. Courts therefore have the power and jurisdiction to enter judgment in favour of a party in the foreign currency claimed. In BROADLINE ENTERPRISES LTD VS. MONTEREY MARITIME CORPORATION & ANOR (1995) LPELR – 807 (SC) the Supreme Court held:
“There can be no doubt that the Courts, in appropriate cases, have the power and jurisdiction to enter judgment in favour of a party in the foreign currency claimed.”
See also KOYA VS. UBA LTD (1997) LPELR – 1711 (SC); CHIEF PETER AMADI NWANKWO & ANOR VS. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) U.A (2007) LPELR – 2108 (SC) and HARKA AIR SERVICES (NIG.) LIMITED VS. KEAZOR ESQ. (2011) LPELR – 1353 (SC).
Now, when it comes to which exchange rate is to be applied by Court in relation to foreign currency one must look at the precedents set down by the Supreme Court in a plethora of cases. The First case as rightly cited by the Appellant is BROADLINE ENTERPRISES LTD VS. MONTEREY MARITIME CORPORATION & ANOR (supra) where the Apex Court held:
“There can be no doubt that the Courts, in appropriate cases, have the power and jurisdiction to enter judgment in favour of a party in the foreign currency claimed. See Miliangos v. George Frank (Textiles) Ltd. (1975) 3 All ER 80. PER IDRIS, J.C.A.

THE NATURE OF A “WAIVER”

The nature of a waiver has been explained comprehensively by the Apex Court in AUTO IMPORT EXPORT VS. J. A. A. ADEBAYO & ORS (2005) LPELR – 642 (SC) relied on by both the Appellant and Respondent, where it was held per Oguntade, JSC, that:
“In the context of this appeal therefore, the first question that one asks is ‘what is waiver’? Rather than define the word, it is probably appropriate just to describe its concept. Foras Pollock said, waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of Court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. see: Vyvyan v. vyvyan 30 Beav 65 as per Sir John Romilly M.R. at p.74 (reported also in 54 E.R. 817). The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability, should be the best judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights. He is, to put it in another way, estopped from raising the issue.”
In the same case, Ogbuagu, JSC explained the meaning of a waiver thus:
“…in order to establish a waiver, it must be shown, that some step has been taken which is only necessary or only useful if the objection, has been actually waived or has never been entertained. See Dr. Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144; (1990) 6 SCNJ 31. In the case of Ariori & Ors. v. Elemo & Ors (supra) referred to in the case of Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt.523) 1; (1997) 7 SCNJ 600, Idigbe, JSC at page 22 of the NSCC Report, defining the word waiver, had this to say:- By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon.”PER IDRIS, J.C.A.

WHETHER OR NOT A PARTY HAS WAIVED HIS RIGHT TO AN APPEAL WHEN THEY HAVE ALREADY REAPED THE BENEFIT OF A JUDGEMENT

THE CONCEPT OF ABUSE OF COURT PROCESS

Finally, as to whether this appeal amounts to an abuse of Court process, it must be noted that what constitutes an abuse of Court process has been explained in AG OF LAGOS STATE VS. AG OF THE FEDERATION & ORS (2014) LPELR – 22701 (SC). In this case, the Court held that:
“Abuse of process of Court consists of an improper use of the issue of judicial process or process already issued to the irritation or annoyance of the opponent. Multiplicity of actions which involve the same subject matter amount to abuse of Court and the Court has a duty to stop such abuse. See Okorodudu v. Okoromadu (1977) 6 NWLR (Pt. 2001) 659 at 681; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188. The list of what constitutes abuse of process of Court is open-ended. It includes raising same issues as in other actions or indeed raising in a subsequent action matters which should have been litigated in the earlier action.”
Similarly, in CHIEF VICTOR UMEH & ANOR VS. PROFESSOR MAURICE IWU & ORS (2008) LPELR – 3363 (SC) the Court held that:
“The terms ‘abuse of Court process’ and ‘abuse of judicial process’ are one and the same thing. Abuse of Court process simply means that the process of the Court has not been used bona fide and properly.
It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a multiplicity of same action in same Court or even before another Court or Courts being pursued simultaneously by the plaintiff as the case may be. The claim(s) relief(s) may be worded differently, but it still amounts to an abuse of process where the substance or the end result of the two or more actions is the same. Thus, where by the grant of one relief/claim, in favour of the plaintiff, the aim of the plaintiff would have been achieved, this will amount to an abuse of process if same question is placed before the same or another Court. It follows, therefore, that where two Courts (or even the same Court) are faced with substantially the same question, it is always desirable to be sure that that question is litigated before only one of these Courts.”PER IDRIS, J.C.A.

DEFINITION OF AN APPEAL

A little precise definition of what an appeal is, is necessary here.
In the case of Okponipere v. The State (2013) 10 NWLR (Pt. 1362) 209, Ariwoola, JSC, gave a definition of appeal as follows:
“Generally, an appeal which ordinarily includes a cross appeal is a resort to a superior Court to review the decision of an inferior Court and find out whether on the facts placed before it and applying the relevant and applicable law, the inferior Courts has come to a right or wrong decision. See; Chief A. Akpan v. Senator Effiong Bob & Ors. (2010) LPELR 376, A.G. Oyo State & Anor. v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt. 92) 56, Oredoyin & Ors. v. Arowolo & Ors. (1989) 3 NWLR (Pt. 172) at 187, Chief FRA Williams v. Daily Times of Nig. Ltd. (1990) 1 NWLR (Pt. 124) 1 at 54. An appeal is therefore, to be initiated by either party to or an interested party in a case properly instituted.”
The right of appeal is constitutional and statutory. By Section 241 (1), 244 (2) and 245 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) every citizen of Nigeria has the right to approach a High Court to exercise his right of appeal. See PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205. The Supreme Court in the case of Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) 264 elaborated on this right as follows:
“It is the glory, happiness and pride of Nigeria’s various Constitutions that to prevent any injustice no man is to be concluded by the first judgment, but that it he apprehends himself to be aggrieved, he had another Court to which he can resort to for relief. For this purpose, the law furnishes him with the right of appeal as of right. If there is no appeal at all possible the right system would be intolerable. The doors of the appellate Courts have to be kept open if rights and freedom are to be preserved.” See also the cases of Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168 at 183 -184 and Ngere v. Okuruket XIV (2014) 11 NWLR (Pt. 1417) at 178 where it was held by this Court that a party should never be denied the right of appeal if he satisfies the conditions for appeal. See again Katol Inv. Ltd v. UACN p.o. co. PIC (2011) 16 NWLR (Pt. 1273) 211 at 223.” PER ADAH, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal by notice of appeal dated 6th May, 2019 and filed on the 8th of May 2019 appealed against the decision/judgement of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/2154/2019 delivered on the 21st of day of February, 2019 by Honourable Justice O. A. Musa wherein the Court ordered that the judgment sum be converted to Naira at the rate at the time of the transaction which was N163 to USD.

The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the Appellant commenced this action by a Writ of Summons (Undefended List) dated and filed 22nd June, 2018 claiming against the Respondent as follows:
1. The sum of US$87,22.22 (Eighty-Seven Thousand, Two Hundred and Twenty-Two Dollars, Twenty Cents) being the debt owed by Defendants to the Claimant.
2. Post Judgement interest at the rate of 10% (percent) until the judgment sum is fully liquidated.
3. The cost of this suit.

The Appellant tendered four (A – D) Exhibits while the Respondent tendered Exhibit DHB1 and DHB2. The trial judge held that Defendant did not deny the claimant’s claim and entered judgement in favour of the Appellant in the sum of US$87,222.22 (Eighty-Seven Thousand, Two Hundred and Twenty-Two Dollars, Twenty Cents) at the rate at that time (163 to US Dollars) minus the N1,000,000.

The Appellant being dissatisfied with the decision of the trial Court sought leave of the Court of Appeal to appeal against the decision. In accordance to the rules of Court parties filed and adopted their respective briefs of argument at the hearing of the appeal.

In the Appellant’s brief, one (1) issue was distilled for the determination of this appeal thus:
Whether the learned trial judge was not in error when he held that the judgment sum be converted to Naira at the exchange rate at the time of the transaction which was N163 to USD (One Hundred and Sixty-Three Naira to a Dollar).

In arguing this sole issue, counsel for the Appellant submitted that the learned trial judge acted in error when he held that the judgment sum should be converted to Naira at the exchange rate at the time of the transaction. Counsel further argued that it is trite law that judgment sum awarded in foreign currencies will not be converted in local currency however if need be, with the concurrence of the judgment creditor it must be converted with current and prevailing exchange rate at the time of execution of the judgment. Additionally, Counsel argued that the relevant rate of dollars as presently obtained and not what was obtainable when the said transaction took place as anything done contrary would only devalue the amount given to the Respondent by the Appellant in year 2012.

Counsel relied on BROADLINE ENTERPRISE LTD VS. MONTEREY MARITIME CORPORATION & ANOR (1995) LPELR – 807 (SC); SALZGITTER STAHL GMBH VS. ARIDI INDUSTRIES (NIG) LTD (1996) 7 NWLR (PT. 459) 192 @ 202 – 203; NWANKWO & ANOR VS. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY U. A. (2001) LPELR – 6991 (CA); UNITED BANK OF AFRICA LIMITED VS. JULIUS A. IBHAFIDON (1994) 1 NWLR (PT. 318) 90 @ 122 and UNION BANK OF NIGERIA PLC VS. ESKOL PAINTS NIGERIA LTD (1997) 8 NWLR (PT. 515) @ 177 – 178.

Counsel for the Appellant then submitted that they are not satisfied with what the result would be because the naira has since been heavily devalued as against other world currencies. They asserted that the effect of yielding to the Court’s judgment would mean that what the Appellant would eventually get would amount to a very small fraction of what the Appellant gave the Respondent and claimed against the Respondent in Dollars. Counsel then concluded that the trial Court did not avert its mind to the aforementioned decisions of the Apex Court cited above before reaching its judgment and thus erred in Law when he held that the judgment sum of US$87,22.22 at the rate at the time (N163 to US Dollar) should be paid as this is not the true position of law. The rate at the time of judgment according to the Appellant was N361.998 to a dollar and they urged the Court to allow this appeal and resolve the issue in their favour.

The Respondent on the other hand distilled 3 (three) issues for determination thus:
1. Whether the trial Court was right when it held that the sum of $87,222.22 (Eighty-Seven Thousand, Two Hundred and Twenty-Two Dollars, Twenty Cents) be paid to the Claimant at the rate at the time (163 to US Dollars) minus the N1,000,000.
2. Whether an Appellant (Judgment creditor) who has started benefiting from the judgment sum has not waived his right to Appeal.
3. Whether this Appeal does not amount to an abuse of Court process.

In arguing issue one, counsel for the Respondent submitted that the trial Court is not a Father Christmas and grant what was not asked for by a party in a suit. Counsel then submitted that since the Appellant commenced this action through undefended list which is strictly for the recovery of debt or liquidated money demand, he can only recover the debt owed by the Respondent and nothing more which the trial Court rightly granted.

Furthermore, the Respondent’s counsel argued that nowhere in writ of summons and the affidavit attached that he asked for any amount other than that which was granted by the trial Court and the Court cannot descend into the arena of conflict in a trial. Finally, counsel argued that the time of the transaction the relationship that existed between the two parties was a principal and agent and the money sent to the Respondent was for the purchase of two plots which is not meant to yield interest.

As it relates to issue two, counsel for the Respondent submitted that in a letter dated 30th of April, 2019 of his willingness to defray the the judgment sum by instalments and forwarded a Zenith bank cheque in the sum of N4,000,000 (Four Million Naira) being an advance of the first instalment which was received and acknowledged by the Appellant’s counsel. Counsel then argued that the actions of the Appellant by agreeing to be paid the judgment sum in instalments and then appealing the same judgement which has started benefiting from amounts to approbating and reprobating.

Additionally, counsel for the Respondent argued that by accepting the N4,000,000 (Four Million Naira) as first instalment, the Appellant has started benefiting from the judgment of the trial Court and has by that act waived his right to appeal. Counsel further argued that if the Appellant was not satisfied with the judgment of the trial court he ought to have rejected the cheque having in mind that he will explore his right of Appeal but decided to sleep on same by accepting the cheque then as an afterthought decide to appeal the judgment.
Under issue 3, counsel for the Respondent argued that this appeal amounts to an abuse of Court process. Counsel submitted that judgment was entered in favour of the Appellant in the exact sum he sought for in his relief and the Appellant received an instalment of 4,000,000 as first payment but still filed an appeal against the decision after already benefiting from same. Counsel further submitted that the Appellant concealed the fact that he received the sum of 4,000,000 as advance and mislead/misguided the Court in this appeal which amount to an abuse of Court process.

The Appellant filed a reply brief to the Respondent’s brief of argument wherein the Appellant submitted that the Respondent raised two new issues to wit:
1. Whether an Appellant (Judgment creditor) who has started benefiting from the judgment sum has not waived his right to Appeal.
2. Whether this Appeal does not amount to an abuse of Court process.

In reply to the first issue counsel for the Appellant submitted that the law is trite that a party who is dissatisfied with the judgment of a lower Court has a right to appeal the said judgment as this is his constitutional right.

Counsel further submitted that the Appellant cannot be said to have waived his right of appeal because he started benefitting from the judgment sum as a party who intends to waive his right must state unequivocally that he waives his right to a claim. Still on the waiver of rights counsel submitted that the attributes of a waiver are (a) the waiver must be clear and unambiguous and (b) the party entitled to the right failed to take advantage of it.

Additionally, counsel argued that the Appellant never agreed with the Respondent that his right to the payment of the judgment sum at the prevalent exchange rate as at 21st February, 2019 when the judgment was delivered by mere reason of accepting the N4,000,000 as part payment. It was argued that even if the Respondent paid the amount in full after the judgment in the retrospective exchange rate as when the money was given out, the Appellant would have still brought this appeal.

On the issue of abuse of Court process, counsel for the Appellant submitted that the Supreme Court in UMEH VS. IWU (2008) NWLR (PT. 1089) 243244 held that for abuse of Court process there must be co-existence of:
(a) A multiplicity of suits
(b) Between the same opponents
(c) On the same subject matter
(d) On the same issues

Counsel then argued that the Respondent in their brief failed to point out where or how this appeal falls into the category of an abuse of processes of the Court. Finally, counsel submitted that this issue cannot hold water and ought to fail as the said ingredients that must co-exist in a process that is an abuse are not present in this appeal

MAIN JUDGMENT
Upon review of all the briefs of arguments filed, I have adopted the three (3) issues distilled by the Respondent for the determination of this appeal. The issues again are:
1. Whether the learned trial judge was not in error when he held that the judgment sum be converted to Naira at the exchange rate at the time of the transaction which N163 to USD (One Hundred and Sixty-Three Naira to a Dollar).
2. Whether an Appellant (Judgment creditor) who has started benefiting from the judgment sum has not waived his right to Appeal and
3. Whether is appeal amounts to an abuse of Court process.

ISSUE ONE
The crux of this issue is whether the trial judge was in error for fixing the exchange rate at the time of the transaction at N163 instead of the exchange rate at the time of judgment which was N361.998 to the dollar.
It is instructive to note that the Apex Court has held in a plethora of cases that a Nigerian Court can award a claim in foreign currency. Courts therefore have the power and jurisdiction to enter judgment in favour of a party in the foreign currency claimed. In BROADLINE ENTERPRISES LTD VS. MONTEREY MARITIME CORPORATION & ANOR (1995) LPELR – 807 (SC) the Supreme Court held:
“There can be no doubt that the Courts, in appropriate cases, have the power and jurisdiction to enter judgment in favour of a party in the foreign currency claimed.”
See also KOYA VS. UBA LTD (1997) LPELR – 1711 (SC); CHIEF PETER AMADI NWANKWO & ANOR VS. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) U.A (2007) LPELR – 2108 (SC) and HARKA AIR SERVICES (NIG.) LIMITED VS. KEAZOR ESQ. (2011) LPELR – 1353 (SC).
Now, when it comes to which exchange rate is to be applied by Court in relation to foreign currency one must look at the precedents set down by the Supreme Court in a plethora of cases. The First case as rightly cited by the Appellant is BROADLINE ENTERPRISES LTD VS. MONTEREY MARITIME CORPORATION & ANOR (supra) where the Apex Court held:
“There can be no doubt that the Courts, in appropriate cases, have the power and jurisdiction to enter judgment in favour of a party in the foreign currency claimed. See Miliangos v. George Frank (Textiles) Ltd. (1975) 3 All ER 80 1. The appellant’s claim under the first relief was admittedly in U.S. dollars per bag payable at the relevant exchange rate of the Nigerian Currency, the Naira. It is crystal clear to me that the appellant is entitled to judgment against the respondents in the sum of U.S. $190,587.00 being the value or price of the 3,434 bags of sugar short-delivered to the said appellant by the respondents. This amount shall however be payable by the respondents to the appellants at the relevant rate of the Naira.”
Secondly, in the case of SALZGITTER STAHL GMBH VS. TUNJI DOSUMU INDUSTRIES LTD (2010) LPELR – 2999 (SC) the Apex Court on the issue of which exchange rate is to be used for foreign currency judgement held per Chukwuma-Eneh, JSC who first quoted Legal Aspect of Money 4th Edition at page 347, that:
“In England the law had a long development which began in the early 17th Century and in modem times led to many problems and difficulties and series of criticisms on a national and international level. But the history became uninteresting and worthless and the accumulated case law rendered obsolete, when in 1975 the law was radically changed by a remarkable piece of judicial legislation. It has resulted in a pattern, which allows the law to be stated in a few simple sentences and produce, wholly satisfactory solutions so as to leave no room for academic discussion. It has resulted in a pattern, which allows the law to be stated in a few simple sentences and produce, wholly satisfactory solutions so as to leave no room for academic discussion. It is now clear that English law does not require any foreign money to be converted into sterling for the purpose of instituting proceedings, on the contrary, where the plaintiff claims a sum of foreign money, he is both entitled and bound to apply for judgment in terms of foreign money and it is only at the stage of payment or enforcement that conversion into sterling at the rate of exchange prevailing takes place.”
The honourable Justice then went on to hold that:
“There can be no doubt the above extract of the learned author represents the current judicial opinion hence the Miliangos case. I have here made a case for our Courts to follow English decisions on the subject-matter in this case as per the Miliangos case which case respectfully in my view promotes better justice in that the time of conversion of the exchange rate is at the time of enforcing judgment also it has rightly overruled the Havana case on the question of jurisdiction to give judgment in foreign currency.”
The Court of Appeal has also decided a few cases in this regard. In SALZGITTER STAHL GMBH VS. ARIDI INDUSTRIES (NIG.) LTD & ANOR (1996) 7 NWLR (PT. 459) 192 the issue for determination was whether a judgment given in foreign currency should be executed in local currency at the exchange rate of the Naira applicable on the date of judgment (which was lower) or on the date of execution (which was much higher) the Court held:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“As a matter of law, if the claim of a Plaintiff was in a foreign currency, such as Pound-sterling, Dollar or Deutschmark, and the judgment was also given in that foreign currency (which the Court has power to do), execution should also be carried out in the said same foreign currency, and it is only as a matter of grace or special dispensation that a judgment debtor can be allowed to pay his foreign debt in local currency. And if that is to be done, it has to be at the rate of exchange applicable on the date of exchange (i.e. at the date on which the execution is sought to be levied). In the instant case therefore, if as a matter of convenience, the debtor wishes to pay in local currency, with the concurrence of the judgment creditor, the exchange rate must be that available on the date of exchange or conversion. That is so because a Bank or “bureau de change” can only sell or buy foreign currencies at the rate prevailing on the date of exchange.”
Similarly, in UNION BANK OF NIG. PLC VS. ESKOL PAINTS NIG. LTD & ANOR (1997) LPELR – 6342 (CA) the Court of Appeal held:
“The short of the foregoing is that no one should be made richer or poorer as a result of his misfortune or disaster. He should be restored to the same position he would have been in if the disaster had not occurred. That is why when a man’s vehicle is damaged beyond repairs, he is entitled, under our law, not to the cost of a brand new car to replace it, nor to the purchase price he paid for it several years before, but to what is usually known as the preaccident value of the vehicle. It follows from the above that the respondents in this case are to be restored to the same position they would have been in if the Appellants had not negligently remitted their money to the Bank of Ireland on the 20/1/82. The question arises:- What was the position the respondents were in immediately before 20/1/82? The answer clearly is that they were the proud owners of $566,250.00 (US Dollars). Therefore, when they lost that amount through the negligence of the Appellants, it is my respectful view that under the doctrine of “restitutio in integrum” the sum of $566,250.00 (US Dollars) lost through the negligence of the Appellants, should be restored to them, for them to use in purchasing from else where the commodities they wanted to purchase from Ireland. It is on record that the sum of $566,250.00 (US Dollars) was not just sent to Ireland for the fun of it. It was the 15% deposit required for provision or purchase of “Pre-fabricated Paint Works Factory” from an Irish Company known as Kings Court Construction Group Export Limited. Even if the respondents were to be paid the Naira equivalent of $566,250.00 (US Dollars) it has to be at that rate prevailing on the date of exchange as the Banks only change foreign currencies on the current rate.”
Finally, in CHIEF PETER AMADI NWANKWO & ANOR VS. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) U. A. (2001) LPELR – 6991 (CA) the Court of Appeal held:
“One other point raised by the appellants which I consider to be of importance is, whether it was proper for the Court below to give judgment in foreign currency. The leading judgment came up with the answer that it was proper for the Court to do so relying on the Supreme Court’s decision in Koya v. U.B.A Ltd., (1997) 1 NWLR (Pt.481) 251, (1997) 1 SCNJ 1. The subject is a topical one on which elaboration is contained in concurring judgments on pages 27, 35, 43, etc., of the reports of Koya’s case. But because of the weight of a concurring judgment on the doctrine of stare decisis and having regard to the type of problem to which the decision in Salati v. Shehu (1986) 1 NWLR (Pt. 15) 98, gave rise in later years I would rather pick my bearings from the leading judgment in Supreme Court’s decision in Broadline Enterprises Ltd v. Monterey Maritime Corporation (1995) 9 NWLR (Pt. 417) 1, (1995) 10 SCNJ 1, 26, as an authority for the proposition that the Courts in this country ‘have the power and jurisdiction to enter judgment in favour of a party in the foreign currency claimed’. But the payment of the judgment debt to the victorious party must be at the relevant exchange rate of the naira. The matter was also discussed by this Court in Salzgitter Stahl GMBH v. Aridi Industries (Nig.) Ltd, (1996) 7 NWLR (Pt. 459) 192, 201 – 202; and Union Bank of v. Eskol Paints (Nigeria) Ltd, (1997) 8 NWLR (Pt. 515) 157, 176, 179c.”
Taking all the precedents above and in view of the principle that no one should be made richer or poorer as a result of his misfortune or disaster, I find that argument of the Appellant is the right and the prevailing exchange rate at the time of the judgment should have been used by the trial judge. I came to this conclusion having in mind that a person should be restored to the same position he would have been in if the disaster had not occurred and when it comes to foreign currencies the amount at the time when the contract was entered into will not translate to the dollar sum at the time of judgment. Contrary to the argument of the Respondent that a Court cannot grant reliefs not sought the Appellant is not seeking a different relief but merely asking that the 87,222.22 be paid to them at the prevailing dollar rate at the time of the judgement as being paid at the dollar rate at the time of entering into the contract does not amount to 87,222.22 in the present times.
In conclusion, the learned trial judge’s order for payment at the exchange rate of N163 is clearly wrong. I therefore resolve this issue in favour of the Appellant against the Respondent.

ISSUE TWO
Under this issue formulated by the Respondent, the Respondent has argued that the Appellant has already started benefitting from the judgment sum as the Appellant has accepted an instalment of 4,000,000 (Million Naira Only) as part payment of the judgment sum which amounts to a waiver of his right to appeal. While the Appellant argued that a waiver is constituted where a party is said to have stated unequivocally that he intends to waive his right to a claim.
Now, the Appellant in their reply to the Respondent’s brief admitted that they had in fact collected an instalment of 4,000,000 (Million Naira Only) as part payment of the judgment sum. This was aptly captured in paragraph 1.15 where the Respondent stated thus:
“My Lords, the Appellant herein never agreed with the Respondent that his right to the payment of the judgment sum at the prevalent exchange rate as at 21st day of February, 2019 when the Judgment was delivered be waived by the mere reason of the fact that he accepted the sum of Four Million Naira (4,000,000) only as part payment the judgment sum.”
The nature of a waiver has been explained comprehensively by the Apex Court in AUTO IMPORT EXPORT VS. J. A. A. ADEBAYO & ORS (2005) LPELR – 642 (SC) relied on by both the Appellant and Respondent, where it was held per Oguntade, JSC, that:
“In the context of this appeal therefore, the first question that one asks is ‘what is waiver’? Rather than define the word, it is probably appropriate just to describe its concept. Foras Pollock said, waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of Court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. see: Vyvyan v. vyvyan 30 Beav 65 as per Sir John Romilly M.R. at p.74 (reported also in 54 E.R. 817). The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability, should be the best judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights. He is, to put it in another way, estopped from raising the issue.”
In the same case, Ogbuagu, JSC explained the meaning of a waiver thus:
“…in order to establish a waiver, it must be shown, that some step has been taken which is only necessary or only useful if the objection, has been actually waived or has never been entertained. See Dr. Saraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144; (1990) 6 SCNJ 31. In the case of Ariori & Ors. v. Elemo & Ors (supra) referred to in the case of Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt.523) 1; (1997) 7 SCNJ 600, Idigbe, JSC at page 22 of the NSCC Report, defining the word waiver, had this to say:- By way of a general definition, waiver – the intentional and voluntary surrender or relinquishment of a known privilege and a right, it therefore, implies a dispensation or abandonment by a party waiving of a right or privilege which at his option, he could have insisted upon.”

Now, the position of law as to whether a party has waived his/her right to an appeal when they have already reaped the benefit of a judgment, can be found in OCHUBA VS. ENEGIDO (2018) LPELR – 44798 (CA). In OCHUBA VS. ENEGIDO (supra), the Court of Appeal per Tukur, JCA held that:
“The Appellant did not deny collecting the Judgment sum from the Respondent and by that Act the Appellant has in my view waived his right to pursue the appeal. It has been held by this Court in KUDU vs. ALIYU (1992) 3 NWLR (pt. 231) 615, 621 per Akanbi JCA (as he then was) thus: “A person having full knowledge of his rights, interests or benefits conferred or accruing to him by the law but he intentionally decides to give up all these or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights. He should be held to have waived those rights…” See: REUBEN ANGBEDO AJAYI & ANOR vs MRS COMFORT BOSEDE (2014) LPELR 23984 (CA), FASADE VS. BABALOLA (2003) LPELR – 1243 (SC) The Appellant herein was under no illusion as to what the Judgment sum represented. To allow the appeal after collecting the Judgment sum in full view of the amount involved would be allowing the Appellant to approbate and reprobate.”
Similarly, in the same case Obaseki-Adejumo, JCA as it related to the waiver of rights held that:
“…it will be totally unfair to allow the Appellant to reap the benefit of a judgment and at the same time kick against the judgement. It will amount to allowing the Appellant to approbate and reprobate. See FRN v. IWEKA (2011) LPELR; 9350 SC. The Appellant having therefore collected the judgment sum is deemed to have waived his right to appeal. See the case of AUTO IMPORT EXPORT v. ADEBAYO & ORS (2005) LPELR – 642 SC where OGUNTADE, JSC at pages 26 – 28, paras G – A, held that: “…The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit, or where he has a choice of two, he decides to take one but not both….”
From the facts of the case, it has been shown that the Appellant collected the sum of 4,000,000 (Million Naira Only) on the 30th of April, 2019 which was before the date of filing his Notice of Appeal on the 8th of May, 2019. The Appellant had clearly already started benefiting from the judgment sum as such by the authority above he has in fact waived his right to an appeal. The argument of the Appellant that he is not disputing the judgment sum but only the dollar exchange rate is of no moment. The rate of the dollar that the Appellant seeks to appeal is part of the judgment of the lower Court and in fact determines how much naira will be paid to the Appellant. Indeed, this Court cannot close its eyes to the fact that the Appellant has started reaping the benefit of the judgment sum given by the trial Court and will not allow the Appellant to kick against the same judgement. Going by the authorities above the act of the Appellant in receiving the sum of 4,000,000 (Million Naira Only) amounts to a waiver of his right to an appeal.

I therefore resolve this issue in Favour of the Respondent against the Appellant.

ISSUE THREE
Finally, as to whether this appeal amounts to an abuse of Court process, it must be noted that what constitutes an abuse of Court process has been explained in AG OF LAGOS STATE VS. AG OF THE FEDERATION & ORS (2014) LPELR – 22701 (SC). In this case, the Court held that:
“Abuse of process of Court consists of an improper use of the issue of judicial process or process already issued to the irritation or annoyance of the opponent. Multiplicity of actions which involve the same subject matter amount to abuse of Court and the Court has a duty to stop such abuse. See Okorodudu v. Okoromadu (1977) 6 NWLR (Pt. 2001) 659 at 681; Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188. The list of what constitutes abuse of process of Court is open-ended. It includes raising same issues as in other actions or indeed raising in a subsequent action matters which should have been litigated in the earlier action.”
Similarly, in CHIEF VICTOR UMEH & ANOR VS. PROFESSOR MAURICE IWU & ORS (2008) LPELR – 3363 (SC) the Court held that:
“The terms ‘abuse of Court process’ and ‘abuse of judicial process’ are one and the same thing. Abuse of Court process simply means that the process of the Court has not been used bona fide and properly.
It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a multiplicity of same action in same Court or even before another Court or Courts being pursued simultaneously by the plaintiff as the case may be. The claim(s) relief(s) may be worded differently, but it still amounts to an abuse of process where the substance or the end result of the two or more actions is the same. Thus, where by the grant of one relief/claim, in favour of the plaintiff, the aim of the plaintiff would have been achieved, this will amount to an abuse of process if same question is placed before the same or another Court. It follows, therefore, that where two Courts (or even the same Court) are faced with substantially the same question, it is always desirable to be sure that that question is litigated before only one of these Courts.”
Flowing from the decisions of the Apex Court above, it can be said that the Appellant’s appeal is an abuse of Court process. The Appellant’s appeal has the ingredients which constitute an abuse of Court process. The Appellant’s issue on Appeal would ordinarily have been genuine, but in the circumstances of this case, it was not raised bonafide. The Respondent’s defence of waiver trumps the Appellants appeal.
This Appeal is dismissed. There is no order as to costs.

STEPHEN JONAH ADAH, J.C.A.: I have had the privilege of reading in draft the judgment just delivered in Court by my learned brother Mohammed Baba Idris, JCA.

I am in complete agreement with the reasoning and the conclusion thereat.

The facts of this case as ably rendered in the lead judgment of my brother are very easy to comprehend. The appellant obtained a judgment wherein the lower Court ordered that he be paid the sum of Eighty-Seven Thousand Two Hundred and Twenty-Two Dollars, Twenty cents. The Court added the offensive clause that the judgment sum be converted to Naira at the rate prevalent at the Time of the transaction which the Court said was N163 to USD. This clause was not part of the agreement of the Parties. That order was not part of the claim of the Parties before the trial Court. The trial Court unilaterally descended into the arena of contest to set that condition. This clearly is against the norm of our system of justice where Parties before the Court are to present their respective claims before the judge who is the umpire and an arbiter. This issue forms the crux of the complaint brought before us on appeal now.

After the judgment of the trial Court was delivered, the appellant in pursuit of the judgment had done partial execution of judgment wherein he was paid a sum of Four Million Naira (N4m) leaving some outstanding sum to be paid. After that execution, the appellant now filed this appeal. The question is can a party accept the judgment of the trial Court, enforce the judgment partly and turn around to complain on appeal, about correctness of the decision? It is all about a misapprehension of what an appeal is. A little precise definition of what an appeal is, is necessary here.
In the case of Okponipere v. The State (2013) 10 NWLR (Pt. 1362) 209, Ariwoola, JSC, gave a definition of appeal as follows:
“Generally, an appeal which ordinarily includes a cross appeal is a resort to a superior Court to review the decision of an inferior Court and find out whether on the facts placed before it and applying the relevant and applicable law, the inferior Courts has come to a right or wrong decision. See; Chief A. Akpan v. Senator Effiong Bob & Ors. (2010) LPELR 376, A.G. Oyo State & Anor. v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt. 92) 56, Oredoyin & Ors. v. Arowolo & Ors. (1989) 3 NWLR (Pt. 172) at 187, Chief FRA Williams v. Daily Times of Nig. Ltd. (1990) 1 NWLR (Pt. 124) 1 at 54. An appeal is therefore, to be initiated by either party to or an interested party in a case properly instituted.”
The right of appeal is constitutional and statutory. By Section 241 (1), 244 (2) and 245 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) every citizen of Nigeria has the right to approach a High Court to exercise his right of appeal. See PDP v. Okorocha (2012) 15 NWLR (Pt. 1323) 205. The Supreme Court in the case of Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) 264 elaborated on this right as follows:
“It is the glory, happiness and pride of Nigeria’s various Constitutions that to prevent any injustice no man is to be concluded by the first judgment, but that it he apprehends himself to be aggrieved, he had another Court to which he can resort to for relief. For this purpose, the law furnishes him with the right of appeal as of right. If there is no appeal at all possible the right system would be intolerable. The doors of the appellate Courts have to be kept open if rights and freedom are to be preserved.” See also the cases of Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168 at 183 -184 and Ngere v. Okuruket XIV (2014) 11 NWLR (Pt. 1417) at 178 where it was held by this Court that a party should never be denied the right of appeal if he satisfies the conditions for appeal. See again Katol Inv. Ltd v. UACN p.o. co. PIC (2011) 16 NWLR (Pt. 1273) 211 at 223.”
The right of appeal is therefore sacrosanct and it is available for both of the parties but it is strictly for the party that is aggrieved over the lower Court’s decision. The words “persons aggrieved” has been held not to mean a man who is disappointed of a benefit which he might have received if some other order had been made. A person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something. See the decision of Oguntade, JSC, in Societe General Bank (Nig.) Ltd v. Afekoro & Ors (1999) 11 NWLR (Pt. 628) 521. Similarly, Ariwoola, JSC, in Abacha v. FRN (2014) 6 NWLR (Pt. 1402) 43, defines who an aggrieved person is as follows:
“To be aggrieved, a person must have legal rights that are adversely affected, having been harmed by an infringement of legal rights. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. See in Re: Alhaja Afusat Ijelu & Ors. v. Lagos State Development & Property Corporation & Ors (1992) NWLR (Pt. 266) 414, (1992) LPELR 1461. The Court below was therefore correct in holding that in the instant context, the expression “person aggrieved” refers to any person whose legal right was invaded by the forfeiture order, whose financial interest was directly and adversely affected by the said Decree and whose right or property may be established or divested.”
In the instant case, the appellant said as an aggrieved person, he can appeal in this case. The respondent had contended that the appellant was engaging in an abuse of the process by accepting the decision and later turn against it. Abuse of the process has been subjected to critical examination in many cases by the Supreme Court. In Saraki & Anor. v. Kotoye (1992) LPELR – 3012 (SC), the Supreme court per Karibi-Whyte held as follows:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in institution a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se. The abuse consists in the intention, purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6.”
An abuse of judicial process is never tolerated in our law because it is offensive to the due administration of justice for anyone to be allowed to abuse the process of the Court.
In the instant case, the act of coming to file an appeal after the appellant had condoned or accepted the decision of the trial Court is an abuse of the process. One cannot from the facts of the instant case impute anything other than that the appellant had thoroughly abused the process by enjoying the fruit of the success at the lower Court and also filing this appeal. Ordinarily, the appellant being the winner of the suit at the lower Court has the duty to support the decision or cross-appeal. He can also file a respondent’s notice to seek to alter the judgment. But he waived that right and accepted the decision and started enforcing it before a change of heart to challenge the decision. The circumstances of this case have added up to manifest the abuse of the process. The parties transacted in USD (American Dollars). The lower Court ordered that the appellant should accept the naira equivalent of the judgment debt exchanged at the rate of N163 to USD. The appellant sequel to the judgment of the lower Court accepted a sum of N4M part payment. He has accepted the judgment of the lower Court. He must stay with it and never to be allowed to approbate and reprobate. He cannot also hide under the right of appeal conferred by the Constitution. In Ladoja v. Ajimobi & Ors (2016) 10 NWLR (Pt. 1519) 88, the Supreme Court cautioned as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“The right of appeal conferred by Section 246 of the 1999 Constitution is not a cover cloak for a party to be in abuse of Court process. In Saraki v. Kotoye (1992) 23 NSCC (Pt. 111) 331 at 349, this Court held: “The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with due administration of justice. It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3SC 21, Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of see also Agbaje v. INEC the right, per se.” See also Agbaje v INEC (unreported SC 675/2015 of 20/10/2015.
It is obvious and clear that the appellant was not on the facts of this case free from abusing the process of the Court.
I am convinced that the conduct of the appellant in the instant case is an abuse of the process of the Court.
I therefore agree fully with my learned brother in the lead judgment that this appeal cannot stand, it being an abuse of the process. For this, and the comprehensive reasons adduced in the lead judgment, I also dismiss this appeal. I abide by the consequential orders made therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and I am in complete agreement with the resolution of the issues distilled for determination. I have nothing more to add. I too dismiss the Appeal.

Appearances:

P. James, Esq. For Appellant(s)

S. Dakat, Esq., with him I. C. Nwagboso, Esq. For Respondent(s)