SKYE BANK PLC v. MR. TUNJI BRAITHWAITE
(2010)LCN/3662(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of March, 2010
CA/L/580M/08
RATIO
PROCEDURE: WHETHER ERRORS HIGHLIGHTED BY A PRELIMINARY OBJECTION CAN BE CORRECTED IN THE PROCESS
In the case of Shanu vs. Afribank that is similar to the instant situation before us, the Apex Court held that errors highlighted by a preliminary objection could be corrected in the process. PER MONICA B. DONGBAN-MENSEM J.C.A
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
SKYE BANK PLC Appellant(s)
AND
MR. TUNJI BRAITHWAITE Respondent(s)
MONICA B. DONGBAN-MENSEM J.C.A (Delivering the Lead Ruling): On the 27th day of October, 2009, this court ordered the filing of written addresses by learned Counsel on the motion filed on the 29/06/09 dated the 26/06/09. Each side was allowed seven days within which to file its address and three days for reply. The motion was then adjourned to the 24/11/09 for adoption of the addresses.
When the said motion finally came up for adoption on the 25/02/2010, the learned Counsel for the Applicant applied to withdraw the said motion and substitute same with another motion filed on the 28th December, 2009 of the same date.
The learned Counsel for the Respondent was vehemently opposed to the said application on two grounds. It was the contention of the learned Counsel for the Respondent that the said motion filed on the 29/06/09 had already been argued on the 27/10/09 and only remains for the addresses to be adopted.
The learned Counsel submitted that the application is an abuse of process. He drew our attention to the fact that the new application has the same prayers, same issues, between the same parties and the same reliefs sought. It was the submission of the learned Counsel that the application constituted an improper use of judicial process interfering with the administration of justice. The learned Counsel implored us to prevent the abuse of process and the misuse of the machinery of justice by invoking the power of the Court to dismiss the application filed on the 29/06/09. Cited in support of this submission is the case of CBN vs. Saidu H. Ahmed & Ors. (2001) 11 NWLR (Pt 724) pg 369@ 372.
The learned Counsel to the Applicant argued that the application is yet to be argued having been reserved for adoption at the resumed date when the arguments would precede the adoption of the addresses. The learned Counsel submitted that it is the practice that where Counsel discovers an error in a previous application, it does not amount to an abuse of process if he files another one with a view to substituting the one with the error. The case of Francis Shanu & Anor. vs. Afribank Nig. Plc (2000) 13 NWLR (Pt. 684) pg 392 @ 404 was cited in support of this submission. The learned Counsel urged us to discountenance the objection.
The records of proceedings of this Court recorded on the 27/10/09 at page 809, per Rhodes Vivour JCA on this issue is as follows:-
“Move the motion. Each side given seven (7) days to file submissions on motion filed on 29/06/09 and three (3) days/or Reply”
Apparently, the decision to take the motion was jettisoned in favour of an order for written addresses. No arguments were recorded.
The learned Counsel for the Respondent urged us to dismiss the motion filed on the 29/06/09 as an abuse of process.
The case of CBN v. Saidu H. Ahmed & Ors (2001) 11 NWLR (Pt 724) pg 369 @ 372 cited in support of his submission addressed at length what constitutes an abuse of Court process. None of the situations described therein is related to the application before us. At least not on the instant Issue. In the case of Shanu vs. Afribank that is similar to the instant situation before us, the Apex Court held that errors highlighted by a preliminary objection could be corrected in the process. Facts have not been placed before us alleging any undue disadvantage occasioned to the Respondent by the application to substitute the motion of the 29/06/09 by a new one. The learned Counsel for the Respondent has himself submitted that the issues, the parties are the same. This objection has merely further taken precious time away from the timeous determination of the application.
We find no merit in the objection of the Respondent which is hereby dismissed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the lead ruling just delivered by my learned brother Dongban-Mensem, JCA, I cannot but concur with the reasoning, and conclusion reached therein, to the effect that the instant application is unmeritorious,
Consequently, the objection is hereby dismissed by me.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in advance the lead ruling just delivered by my learned brother, Dongban-Mensem JCA. I am in complete agreement with the reasoning and conclusions reached therein.
The applicant herein applied for stay of execution, vide an application dated 26/6/09 and filed 29/6/09. This court ordered for written addresses, and on 25/2/10, the date fixed for adoption of addresses, the applicant applied to withdraw the said application in substitution for a new one. The respondent on his part objected to the withdrawal, contending that the application is deemed argued and to allow the new application will amount to an abuse of court process. The respondent urged that the application be dismissed. The written addresses have not been adopted and neither oral arguments proferred in respect of the application, hence issues are not joined on the application. Consequently the application cannot be deemed argued and the applicant can withdraw it at this stage. The initial application is being withdrawn, to give room for the second application. Hence there cannot be said to be an abuse of Court process, as the two application are not co-existing simultaneously at the same time.
For the above and fuller reasons contained in the lead ruling, the objection is devoid of merit and same is hereby dismissed by me.
Appearances
Lant Osinaike
Olatunde Adejuyigbe
Chuks Ezema
A.A. BegbajiFor Appellant
AND
Dr. Tunji Braithwaite
R. Okesiji Esq.
O. Braithwaite
O. K. Omolodun
M. Igiewe (Mrs.)For Respondent
