SENATOR ABDULAZIZ M.H. NYAKO v. UNITED BANK FOR AFRICA
(2019)LCN/12661(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2019
CA/L/1368/2017
RATIO
COURT AND PROCEDURE: ABUSE OF COURT PROCESS
“The law on abuse of Court process is clear and to the effect that abuse of Court process refers to a variety of situations, which may not be fully enumerated or limited, but which always involve the misuse of the process of Court for a purpose that is malfide, aimed at annoying or disturbing the party against whom it is used.
The Apex Court expounded on what abuse of Court process is in the case of OYEYEMI & ORS v. OWOEYE & ANOR (2017) LPELR-41903(SC), (Pp. 19-20, Paras. E-B)” PER JAMILU YAMMAMA TUKUR, J.C.A.
COURT AND PROCEDURE: THAT THE COURT FROWNS AT DOUBLE COMPENSATION
“The law indeed frowns at double compensation and in the case of BRITISH AIRWAYS v. ATOYEBI (2014) LPELR-23120(SC)(Pp. 43-44, paras. G-B), the Apex Court succinctly stated the position of the law on double compensation held thus: ‘The law is that a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head. See: Tsokwa Motors (Nig.) Ltd. v. U.B.A. Plc (2008) 2 NWLR (pt. 1071) 347; Artra Industries (Nig.) Ltd. v. N.B.C.I. (1998) 4 NWLR (pt. 546) 357; Arisons Trading & Eng. Co. Ltd. v. Military Governor, Ogun State & Ors. (2009) 15 NWLR (pt. 1163) 26.'” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
SENATOR ABDULAZIZ M.H. NYAKO Appellant(s)
AND
UNITED BANK FOR AFRICA (UBA) Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the ruling of the High Court of Lagos State in Suit No. LD/1300GCM/2016 delivered on 21st September, 2017, by Honourable Justice S.A. Onigbanjo in favour of the Respondent.
The material facts of the case culminating in this appeal are herein rendered thus:
The Respondent acting on the instruction of the Economic and Financial Crimes Commission (EFCC) froze the Appellant’s account. This led to the institution of a fundamental rights action and obtaining of judgment against the EFCC in Suit No: FHC/ABJ/CS/127/2015: Abdudlaziz M.H Nyako v. EFCC, where the Court held the EFCC?s actions unlawful, awarded damages and ordered that the account be unfrozen. The Appellant subsequently informed the Respondent of the decision via a letter dated 10th August, 2016.
Acting on the belief that the Respondent refused to comply with the aforementioned Court’s decision, the Appellant brought an action before the lower Court via an Originating Summons dated 5th September, 2016, seeking the determination of the following questions:
1. Whether the freezing of the Claimant personal account No. 1002640674 by the Defendant without any valid Court order is lawful and not in conflict with the provisions of the Constitution of the Federal Republic of Nigeria.
2. Whether the continued and continuous freezing of the Claimant personal Account No: 1002640674 by the Defendant despite a valid and subsisting Judgment of the Court is lawful.
3. Whether the Defendant is not subject to the law and under legal obligation to obey and comply with valid and subsisting Court orders and judgment.
4. Whether if the above questions are in the affirmative, the act and action of the Defendant in the continuous and continued freezing of the Claimant account without Court order and the failure of the Defendant to obey, adhere and comply with Court judgment is not wrongful, unlawful, illegal, contemptuous, null and void without recourse to the law.
The Appellant thereafter sought the immediate unfreezing of the account; public apology; damages and cost of the action.
In response, the Respondent file a Notice of Preliminary Objection dated 31st October, 2016, objecting to the competence of the suit.
The trial Court in a ruling dated 21st September, 2017, struck out the suit in-limine for being unduly academic and abuse of Court process, on the grounds that the issues raised were the same or similar to those raised in, or ought to have been raised therein.
Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated 13th November, 2017, with three grounds of appeal.(pages 134 – 138 of the record).
The Appellant’s Brief of Argument settled by Olukoya Ogungbeje Esq., of Lawflex Chambers is dated 19th June, 2018, and filed on 20th June, 2018, but deemed as properly filed on 21st June, 2018. The Appellant?s Reply Brief is dated 27th November, 2018 and filed on 28th November, 2018.
Appellant’s counsel formulated three issues for determination to wit:
1. Whether the learned trial Judge was right when he held that the Appellant suit is an abuse of Court process. (Ground 1)
2. Whether the learned trial Judge was right when he held that the Appellant suit was seeking double compensation for injuries allegedly suffered by the Appellant. (Ground 2)
3. Whether the learned trial Judge did not misdirect himself in his holding at page 3, 2nd paragraph of the ruling of the Court below that the Appellant ought not to have commenced the suit against the Respondent. (Ground 3)
On the other hand, the Respondent?s Brief settled by Peter Olomola, Esq., of Afe Babalola & Co., is dated 11th September, 2018, and filed on 13th November, 2018, but deemed as properly filed on 29th November, 2018.
Respondent’s counsel distilled two issues for determination to wit:
1. Whether or not the suit filed before the trial Court is an abuse of Court process. (Ground 1)
2. Whether or not the Learned Trial Judge was right to hold that the Appellant is seeking double compensation by the institution of the suit at the trial Court. (Ground 2)
The issues formulated by counsel on both sides are substantially the same, and I therefore proceed to determine the appeal on the issues distilled by the Appellant, for the purpose of convenience. Furthermore, the issues will be taken together as they are inter-woven.
On issue one, learned counsel for the Appellant argued that the suit instituted before the lower Court, leading to this appeal, cannot be an abuse of Court process, because it is different from that of FHC/ABJ/CS/127/2015: Abudlaziz M.H Nyako v. EFCC, wherein the order to unfreeze the account was given, as it has different parties, facts and subject matter.
He relied on the following cases:
NDIC v. UBN Plc (2015) 12 NWLR (Pt.1473) pg 398 paras E-F; Admiral Murtala Nyako v. Adamawa State House of Assembly & Ors (2016) Appeal No: CA/YL/29/2015 delivered on the 11th of February 2016 (Unreported judgment of the Court of Appeal, Yola); and Admiral Murtala Nyako v. Adamawa State House of Assembly & Ors (2017) 6 NWLR (Pt.1562) at 347.
Learned counsel in substantiating the above, further argued that fundamental rights enforcement actions are sui generis and as such cannot be same with the present action; that the Respondent was not a party to that action; and it was the continuous refusal of the Respondent even after the Court had ordered to the contrary that necessitated the institution of the action.
He relied on: Abia State University v. Chima Anyiabe (1996) 1 NWLR (Pt.439) 646 at 660-661; Jim Jaja v. C.O.P & Ors (2013) 6 NWLR (Pt.1350) pg 225 at 244-245 par H-A; and Theresa Onwo v. Nwafor Oko & Ors (1996) 6 NWLR (Pt.456) 584 at 603-604.
On the other hand, learned counsel for the Respondent argued that the action culminating in this appeal constitutes an abuse of Court process, because the subject matter of the suit against the EFCC is the unfreezing of the account, and that same action constitutes the reason for the institution of the present action. Counsel further argued that the aim of the action is to irritate, harass and annoy the Respondent and ought to be dismissed.
He relied on the following cases:
Lokpobiri v. Ogola (2016) 3 NWLR part 1499 pg 328 at 367-368; Umeh v. Iwu (2008) 8 NWLR (Pt.1089) 225 at 260; Anyaduba v. NRTC Ltd (1990) 1 NWLR (Pt.127) 397; Harriman v. Harriman (1989) 5 NWLR (Pt.119) 6; and Dingyadi v. INEC (2011) LPELR-950 (SC).
Counsel predicated the above on the facts that the Respondent placed a ?no debit order? on the Appellant?s account No. 00710070013014, upon the receipt of instructions from the EFCC dated 4th July, 2014 to that effect, but that upon the receipt of a letter dated 10th August, 2016 from the Appellant?s Solicitors containing a certified true copy of the judgment in Suit No. FHC/ABJ/CS/127/2015: Abudlaziz M.H Nyako v. EFCC, the Respondent immediately lifted the ?no debit order? placed on the Appellant?s account. He further argued that upon the lifting of the ?no debit order? the Appellant personally operated the account by personally withdrawing the sum of N3,550,000.00 on 14th October, 2016.
In arguing issue two, learned counsel for the Appellant submitted that the reliefs sought in the action at the lower Court does not constitute double compensation, as the Appellant suffered damage from the Respondent’s continued freezing of the Appellant’s account even after being served with the Court order, which calls for a separate compensation.
He cited the case of Theresa Onwo v. Nwafor Oko & Ors (supra).
On the other hand, learned counsel for the Respondent argued that the institution of the suit at the lower Court as rightly held by the trial Court is an attempt to get double compensation because a comparison of the claims before the Court in FHC/ABJ/CS/127/2015: Abudlaziz M.H Nyako v. EFCC, and the one leading to this appeal reveals that they are similar and are seeking compensation for the freezing of Appellant’s account.
He relied on the following cases:
Tsokwa Motors (Nig.) Ltd v. UBA (2008) All FWLR (Pt.403) 1240; Artra Industries Nigeria Ltd v. The Nigerian Bank for Commence and Industries (1998) 4 NWLR (Pt.546) 357; Shell Petroleum Dev. Co. Nig Ltd v. Udi (1996) 6 NWLR (Pt.455) 483 at 499; John Holt Ventures Ltd v. Oputa (1996) 9 NWLR (Pt.470) 101 at 113-116; Union Bank of Nigeria Plc v. E.D. Emole (2001) 18 NWLR (Pt.745) 501; Owena Mass Transportation Co. Ltd v. Imafidon (2011) LPELR-4810 (CA); Kopek Const. Ltd v. Ekisola (2010) 3 NWLR (Pt.1182) 618; and Mabamije v. Otto (2016) LPELR-26058 (SC).
With regards to issue three, learned counsel for the Appellant argued that contrary to the holding of the trial Court, the Appellant could not bring contempt proceedings against the Respondent, with regards to the judgment in FHC/ABJ/CS/127/2015: Abudlaziz M.H Nyako v. EFCC, because the Respondent was not a party to the case, contempt proceedings can only be brought against a person who was a party to a case, and is just one out of several options of enforcement which the Appellant is at liberty to choose from.
Learned counsel also argued that the Respondent admitted freezing the Appellant?s account without a Court order and has also admitted the judgment of the Federal High Court Abuja, hence the Appellant ought to obtain judgment.
He relied on: Kamalu v. Umunna (1997) 5 NWLR (Pt.505) at 321 at 337; Biezan Exclusive Guest House Ltd v. Union Homes Savings and Loans Ltd (2011) 7 NWLR 9Pt.1246) 246 at 285 par C-D; and Bunge v. Governor, Rivers State (2006) 12 NWLR (Pt.995) 573 at 599-600 par H-A.
In the reply brief, learned counsel for the Appellant submitted that the Respondent did not immediately unfreeze the account, an act which prompted Appellant’s Solicitors to write the Respondent on the legal implication of the continued and continuous freezing.
He also submitted that N12,500,000.00 (Twelve Million, Five Hundred Thousand Naira) awarded in favour of the Appellant in Suit No. FHC/ABJ/CS/127/2015: Abudlaziz M.H Nyako v. EFCC, is for the unlawful arrest and detention of the Appellant by the EFCC.
RESOLUTION
The law on abuse of Court process is clear and to the effect that abuse of Court process refers to a variety of situations, which may not be fully enumerated or limited, but which always involve the misuse of the process of Court for a purpose that is malfide, aimed at annoying or disturbing the party against whom it is used.
The Apex Court expounded on what abuse of Court process is in the case of OYEYEMI & ORS v. OWOEYE & ANOR (2017) LPELR-41903(SC), (Pp. 19-20, Paras. E-B), where per Bage JSC, held thus:
“This Court has succinctly enunciated in NTUKS VS NPA (2007) 13 NWLR (Pt. 1051) page 392 on the meaning of abuse of Court process and held that: “Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitates action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used merely to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the abatement of the matter for no good cause. T
he Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.” Per Tobi, J.S.C.” Furthermore,in CHIEF VICTOR UMEH & ANOR VS PROFESSOR MAURICE IWU & ORS (2008) Vol. 41 WRN 1 at 18 lines 5-10 (SC) this Court enunciated on what abuse of process connotes and attitude of Courts to suit filed in abuse of process thus: “It is settled law that generally, abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue.See: KADIRI & ANOR v. EWUOSO (2014) LPELR-22953(CA); and SHERIFF & ANOR v. PDP & ORS (2017) LPELR-41805(CA).
More relevant to the facts of this appeal is the decision of the Supreme Court in AG OF LAGOS STATE v. AG OF THE FEDERATION & ORS(2014) LPELR-22701(SC) (P. 89, paras. A-E), where per Ngwuta JSC, the Court held thus:
“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. See Thames Launettes Ltd v. Corporation of the Trinity Home of Deptford Strand (1961) All ER 26 at 32, 33; Akandipe v. Coptors (2000) 78 LRCN 1692 at 1699. It involves lack of good faith in the action. See Federal Republic of Nigeria v. M.K.O. Abiola (1997) 2 NLCR 44.”
The import of the above is that if the Appellant herein is raising a different issue, then his matter cannot be held to constitute an abuse of Court process, but if his case before the lower Court is similar, consists of the same issues raised or which ought to have been raised in the earlier case, it is an abuse of process, particularly multiplicity of actions.
A calm look at the facts reveals that the case instituted at trial herein is similar to that decided by the lower Court in Suit No: FHC/ABJ/CS/127/2015: Abudlaziz M.H Nyako v. EFCC, and the issues being treated here could have been resolved therein. As a matter of fact, the trial Judge in that case expressly stated that the reason he awarded damages as high as N12,500,000.00 (Twelve Million, Five Hundred Naira), was because of the unlawful and continued freezing of Appellant’s account. The foregoing is at page 44 of the records.
Appellant’s assertion that the Respondent refused to unfreeze the Appellant’s account even after being aware of the Court order was not satisfactorily established and therefore cannot form the basis of distinction between the case leading to this appeal and the earlier one.
Determination of the similarity between the two relevant cases will go a long way in determining whether the Appellant by his institution of the action before the lower Court is seeking doubled compensation. This is so because one of the instances in which double compensation arises is where a Claimant, having been awarded adequate relief for wrong suffered during the course of a particular transaction, seeks to obtain another one in a manner not permitted by law. The law indeed frowns at double compensation and in the case of BRITISH AIRWAYS v. ATOYEBI (2014) LPELR-23120(SC)(Pp. 43-44, paras. G-B), the Apex Court succinctly stated the position of the law on double compensation held thus:
‘The law is that a person who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head. See: Tsokwa Motors (Nig.) Ltd. v. U.B.A. Plc (2008) 2 NWLR (pt. 1071) 347; Artra Industries (Nig.) Ltd. v. N.B.C.I. (1998) 4 NWLR (pt. 546) 357; Arisons Trading & Eng. Co. Ltd. v. Military Governor, Ogun State & Ors. (2009) 15 NWLR (pt. 1163) 26.”
See: M.T.N. (NIG) COMMUNICATIONS LTD v. C-SOKA (NIG) LTD(2018) LPELR-44423(CA); UBA PLC v. GOSTAR INVESTMENT CO. LTD(2018) LPELR-44886(CA); and EASTERN BREWERIES PLC, AWO OMAMMA & ORS V. NWOKORO.
From the above, there is no doubt that awarding the Appellant relief for the alleged freezing of his account, after same had been awarded, for the same reason in the earlier case, would amount to double compensation.
There is no doubt that contempt proceedings are a veritable means of ensuring compliance with Court orders. Notwithstanding the correctness or otherwise of Appellant?s arguments under this head, the fact that the Appellant did not institute contempt proceedings is not the reason why the trial Court refused to hear the Originating Summons on the merits, and as such, there is no need to resolve same, for to so do would amount to an academic exercise.
In summation I find the appeal as lacking in merit and same is hereby dismissed. The Ruling of the lower Court delivered on 21 September, 2017 is affirmed.
There shall be costs of Two Hundred Thousand Naira (N200, 000.00) awarded in favour of the Respondent against the Appellant.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A., which I had the benefit of reading in draft.
Appearances:
O.E. OgungbejeFor Appellant(s)
Peter Olomola with him, I.C. UwaFor Respondent(s)
