ABDUL KADIR ALIYU & ORS v. INTERCONTINENTAL BANK PLC & ANOR (2013)

ABDUL KADIR ALIYU & ORS v. INTERCONTINENTAL BANK PLC & ANOR

(2013)LCN/6149(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of May, 2013

CA/K/146/2004

RATIO

DISCRETION: DEFINITION

Discretion in the judicial and legal con means equitable decision of what is just and proper under the facts and circumstances of a particular case guided by the principles of law – Arta Industries (Nig) Ltd V. Nigerian Bank for Commerce & Industry (1998) 4 NWLR (Pt 546) 357 and Soyinka V. Oni (2011) 13 NWLR (pt 1264) 294.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

DISCRETION: WHETHER THE DISCRETIONARY JURISDICTION OF THE COURT FORMS PART OF THE INHERENT POWERS OF THE COURT
The discretionary jurisdiction of the court forms part of the inherent power that is innate to the court once it is established. It is a jurisdiction that vests naturally in a court by virtue of its creation under the Constitution of the Federal Republic of Nigeria. Courts are the primary custodians of the Constitution and by reason of which they are inherently imbued with sacrosanct and far-reaching fundamental powers to preserve and uphold the rule of law – Gadi V. Male (2010) 7 NWLR (pt 1193) 225. The court’s discretion transcends all legal and equitable, and enables the court to make such orders as it thinks fit. This means that the court is entitled to make such order as may be fair and just in all circumstances of the case – Olusola V. Trust Properties Ltd (2010) 8 NWLR (pt 1195) 1.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

RULES OF COURT: WHETHER THEY CAN LIMIT THE DISCRETIONARY POWERS OF THE COURT

It is trite that the Rules of Court are handmaids to justice and were not designed to stultify, justice. Therefore, the Rules of Court cannot circumscribe or delimit the discretionary powers of the Court to grant or make just and fair orders where the circumstances so require. Thus, the fact that the provisions of Order 48 Rules 32 to 34 of the of the High Court of Kaduna State (Civil Procedure) Rules provides that orders for the administration of a property of a deceased should be made after service of the summons on the administrators and that the lower Court cannot make an order as regards the property of the deceased without having first made an administration order, cannot preclude the lower Court from making orders against the property of a deceased which are just and fair in the circumstances, even where they are requested for by an ex parte application and before any administration order is made.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

APPEAL: AN APPELLATE COURT SHOULD NOT INTERFERE IN THE DISCRETION OF THE LOWER COURT WHEN IT IS EXERCISED JUDICIOUSLY AND JUDICIALLY
It issettled law that where a Court exercises its discretion judicially and judiciously, an appellate Court will not interfere with such exercise of discretion – Nwude V. Federal Government of Nigeria (2004) 17 NWLR (Pt 902) 306, Onwuka V. Ononuju (2009) 11 WLR (Pt 1151) 174, Oyegun V. Nzeribe (2010) 7 NWLR (pt 1194) 577.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

APPEAL: HOW TO DETERMINE WHETHER OR NOT THE LOWER COURT EXERCISED DISCRETION APPROPRIATELY

The principle to be followed by an appellate Court in considering a complaint against an exercise of discretion by a lower Court was stated by the Supreme Court in Alsthom SA V. Saraki (2005) 3 NWLR (Pt 911) 208 thus:
‘In determining whether a trial court exercised its discretion judicially and judiciously, care must be taken by the appellate court not to substitute its own discretion for the discretion of the trial court. The true principle is that for an appellate court to interfere with the exercise of the discretionary power vested in the trial court, it must be shown how that power was wrongly exercised to justify the intervention of the appellate court. In other words, to succeed in such an appeal, the appellant must satisfy the appellate court that the trial court acted on an entirely wrong principle or failed to take all the circumstances of the case into consideration, and that it is manifest that the order would work injustice to the appellant.’
The principle was reiterated by the Supreme Court in Mamman V. Salaudeen (2005) 18 NWLR Pt 958) 478 thus:
‘A discretion properly exercised by a court will not be lightly interfered with by an appellate court even where the appellate court is of the opinion that it might have exercised the discretion differently. An appellate court will only interfere with the exercise of discretion by a lower court where that court exercised its discretion upon a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters, thereby giving rise to injustice’PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

INJUNCTION: PURPOSE OF GRANTING AN ORDER OF INTERIM INJUNCTION

It is trite that the purpose or object of granting an order of interim injunction is to make sure that the subject matter of the litigation is kept in status quo pending or until the litigation. It is aimed at meeting a situation of real urgency or emergency before the respondent can be put on notice. Accordingly, the order must be restricted or limited to the preservation of the res pending the determination of a motion on notice Universal Trust Bank Ltd V. Dolmetsch Pharmacy (Nigeria) Ltd (2007) 16 NWLR (Pt 1061) 520.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

WHETHER AN INTERIM INJUNCTION CAN LAST THE DURATION OF A MATTER

A court of law has no power, even under its inherent jurisdiction, to make an order of interim injunction to last the duration of a matter. This is a fundamental vice and a clear un-judicial and injudicious exercise of discretion under a wrong principle of law. This Court must intervene in such circumstances and discharge or set aside such orders, notwithstanding the lapse of the time within which the Appellants could apply to set aside the order as of right under the Rules of Court. The fourth issue for determination is resolved in favour of the Appellants.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

ADDRESS: WHETHER THE ADDRESS OF A COUNSEL IS BINDING ON THE COURT

This is because the address of Counsel is not binding on the Court. The Court must still assess the arguments – Oruboko V. Oruene (1996) 7 NWLR (pt 462) 555, Eya V. Olopade (2011) 11 NWLR (pt 1259) 505 and Independent National Electoral Commission V. Nyako (2011) 12 NWLR (Pt 1262) 439. In Edonkumoh V. Mutu (1999) 9 NWLR (Pt 620) 633, Ibiyeye, JCA stated at 652 E-F thus:
“It is pertinent to point out that the learned counsel for the first respondent did not proffer any response to this issue in his brief of argument. It follows therefore that he has little to urge on it. The fact that there is want of response by the first respondent is no licence to accede to the arguments and submissions of learned Counsel for both the appellant and the second to fourth respondents. Those submissions will still be meticulously considered and opined upon accordingly.”PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

ABUSE OF PROCESS : NATURE

Now, abuse of process is a concept; it is an idea or a general notion formed by generalization from particular examples. It is a concept that is imprecise. It involves circumstances and situations of infinite variety and conditions. In Messrs NV Scheep & anor V. The MV ‘S Araz’ & anor (2000) 15 NWLR (Pt 691) 622 at page 664 Karibi-Whyte JSC said of the concept thus:
“The legal concept of the abuse of the judicial process or the abuse of the procedure of the court is very wide. The scope and content of the circumstances of the material facts and conduct, which will result in such abuse, are infinite in variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of the plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may be constituted by irregularities in the pursuit of actions.”PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

ABUSE OF PROCESS: WHAT AMOUNTS TO AN ABUSE

The concept of abuse of process has been dealt with in a myriad of cases in our courts. In several cases, the courts have looked at the concept from the perspective of what amounts to an abuse and have itemized certain circumstances that will give rise to an abuse of judicial process as:
(a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.
(b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds.
(c) Where two similar processes are used in respect of the exercise of the same right, for example, a cross appeal and a respondent’s notice.
(d) Where an application for adjournment is sought by a party to an action to bring an application for leave to raise issues of fact already decided by courts below.
(e) Where there is no iota of law supporting a court process or where it is premised on frivolity or recklessness.
See the cases of Jadesinmi v. Okotie-Eboh (1986) 1 NWLR (pt 16) 264, Saraki v. Kotoye (1992) 9 NWLR (pt 264) 156, Jimoh v. Starco (Nig) Ltd (1998) 7 NWLR (pt 558) 523 and Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (Pt 1066) 319.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

ABUSE OF PROCESS: THE IMPROPER USE OF THE JUDICIAL PROCESS BY A PARTY IN LITIGATION

A common feature of all the cases on abuse of process is that the concept is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; it is the inconveniences and inequities in the aims and purposes of the action – Saraki V. Kotoye supra, Ogoejeofo V. Ogoejeofo (2006) 3 NWLR (pt 966) 205 and Ali V. Albishir (2008) 3 NWLR (pt 1073) 94.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

CFR Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

ABDUL KADIR ALIYU
HAJIYA HALIMA ALIYU
PROFESSOR SHEIK ABDULLAHI (Administrators of the Estate of Alhaji Mahmud Mundi Aliyu (deceased) Appellant(s)

AND

INTERCONTINENTAL BANK PLC
UNION BANK OF NIGERIA PLC Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Kaduna State in Suit No KDH/KAD/110/2003 delivered by Honorable Justice A. A. Othman on the 12th of February, 2004. The first Respondent, as plaintiff, commenced this action against the Appellants and the second Respondent, as first to fourth defendants, in Suit No KDH/KAD/110/2003. By an Originating Summons Ex Parte dated the 24th of February, 2003 and taken out in the High Court of Kaduna State the first Respondent posed some questions for determination and then prayed for:
i. An order of the Honorable Court for the issuance of a summons and/or originating summons requiring the administrators (i.e. first to third defendants herein) of the property and estate of Alhaji Mahmud Mundi Aliyu (deceased) and the fourth defendant to attend before this court and show cause why an order for the administration of the property of the deceased should not be made.
ii. An order of interim injunction restraining the administrators (defendants herein) of the property and estate of Alhaji Mahmud Mundi Aliyu (deceased), their agents, privies and/or any person whosoever acting on their instructions, from henceforth administering, tampering with, removing and dealing in anyway whatsoever, with the personal property and estate of and/or any of the properties of Alhaji Mahmud Mundi Aliyu (deceased) wheresoever lying, located and/or situated, particularly the sum of N6, 123,280.16k credit balance or any current credit balance whatsoever in Alhaji Mahmud Mundi Aliyu (deceased) with Union Bank of Nigeria Plc Kaduna Branch current account pending the determination of the court’s summons and/or originating summons in this suit.
iii. An order of interim injunction restraining Union Bank of Nigeria Plc (fourth defendant herein) its agents, privies, staff and/or anybody whosoever acting on its instructions from releasing and/or further releasing to the administrators of the property and estate of Alhaji Mahmud Mundi Aliyu (deceased), their agents, privies and/or anybody whosoever acting on their behalf and/or instructions, any sum of money and/or further sum of money from the N6,123,280.16k credit balance or any current credit balance whatsoever in Alhaji Mahmud Mundi Aliyu (deceased) with Union Bank of Nigeria Plc Kaduna Branch pending the determination of the court’s summons and/or originating summons in this suit.
The motion was supported by an affidavit with exhibits attached. Along with the application, the first Respondent also filed an Originating Summons dated the 24th of February, 2003 wherein it again posed some questions for determination and it sought the following prayers:
i. A declaration that Alhaji Mahmud Mundi Aliyu is indebted to the plaintiff (i.e. Intercontinental Bank Plc) in the sum N10,753,609.72k as admitted and acknowledged by the deceased’s administrators and as reflected and endorsed in the 21st of January, 2003 letters of administration issued by the Kaduna State High Court of Justice Probate Division.
ii. A declaration that the plaintiff (i.e. Intercontinental Bank Plc) is entitled to 25% bank interest charges on the said debt of N10,753,609.72k from January 2003 till liquidation of the debt, being the agreed interest rate between the deceased and the plaintiff.
iii. An order for the administration of the property/estate of Alhaji Mahmud Mundi Aliyu (deceased) by this Honorable Court.
iv. An order that the sum of N6,123,280.16k and/or any credit sum whatsoever in Alhaji Mahmud Mundi Aliyu (deceased) Union Bank of Nigeria Plc Kaduna Branch accounts be paid to the plaintiff (i.e. Intercontinental Bank Plc) towards the settlement of the deceased’s indebtedness in the admitted sum of N10,753,609.72k plus interest on same to the plaintiff.
The originating summons was supported by an affidavit with exhibits attached. The lower Court heard the Originating Summons Ex Parte on the 29th of February, 2003 and it granted the prayers sought thereon and it adjourned the Originating Summons to the 20th of March 2003 for hearing. The first Respondent thereafter filed a motion on notice dated the 7th of April, 2003 seeking to amend the Originating Summons.
The Appellants in response filed a notice of preliminary objection dated the 30th of April, 2003 challenging the competence of the suit, the competence of the motion on notice dated the 7th of April, 2003, the competence of the Originating Summons Ex Parte and of the orders made by the lower Court on the 29th of February, 2003. The lower Court took arguments on the notice of preliminary objection and it dismissed same in a Ruling delivered on the 12th of February, 2004. The Appellants were dissatisfied with the Ruling and they caused a notice of appeal dated the 23rd of February, 2004 to be filed against it and it contained five grounds of appeal.
In arguing the appeal, Counsel to the Appellants filed a brief of arguments dated the 5th of May, 2005 and it consisted of eleven pages. In response, Counsel to the first Respondent filed a brief of arguments dated the 12th of April, 2006 and it was deemed properly filed on the 14th of June, 2006 and it consisted of thirty pages. Counsel to the Appellants filed a reply brief dated the 15th of February, 2010. The reply brief was obviously filed out of time and there is nothing in the records of this Court to show that the Appellants obtained an order of Court to regularize the process, the reply brief will thus be discountenanced. The second Respondent filed no processes in the appeal. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.
Counsel to the Appellants distilled five issues for determination in his brief of arguments and these were:
i. Whether the ex parte originating summons under Order 6 rule 10 could be used for the purposes of achieving the provisions of Order 48 rule 32 and rule 34 of the Kaduna State High Court Civil Procedure Rules 1987 or converted to summons to show cause.
ii. Whether a challenge against the jurisdiction of the court is the same with challenge against the competence of the suit.
iii. Whether the originating summons procedure is a competent/proper procedure for this claim to recover the principal loan sum with interest by the first Respondent from the Administrators of the Estate of the deceased.
iv. Whether the mere heading of an affidavit as “affidavit of urgency” is all that is required to secure a grant of an ex-parte order and whether making the order in the circumstances of this case without hearing the Appellants is not a denial of fair hearing.
v. Whether filing the suit by the Respondent and the ex parte order made by the Court are not an abuse of Court process by virtue of the subsisting letter of administration already issued by the Probate Division of the High Court of Kaduna State and when there is no judgment of a court against the Estate.
In his brief of argument, Counsel to the first Respondent formulated two issues for determination and these were:
i. Whether the procedure before the lower Court was irregular or an abuse of Court process as to deny the lower Court jurisdiction in this matter.
ii. Whether the procedure (if irregular) adopted before the lower Court occasioned any miscarriage of justice to the Appellants.
The issues for determination formulated by the Appellants are distilled from the grounds of appeal and it follows naturally that the issues so formulated encompass the grievances of the Appellants in this appeal. They thus must be preferred and form the basis of the resolution of this appeal – United Bank of Africa Plc V. Odimayo (2005) 2 NWLR (pt 909) 21.

This appeal will revolve around the resolution of the issues formulated by the Appellants.
On the first and second issues for determination, Counsel to the Appellants stated that the filing of an Originating Summons ex parte by the first Respondent in this matter was completely irregular and not in compliance with the Rules of the High Court of Kaduna State as Order 6 rule 2 of the High Court Rules which provides for originating summons ex parte did so in respect of matters by infants. Counsel referred to Forms 54, 55, 56, 57 and 58 in the High Court Rules and submitted that the Originating Summons ex parte taken out by the first Respondent was not in compliance with Form 58 thereof. With regard to the Originating Summons filed by the first Respondent, Counsel stated that what the Rules of Court, Order 48 rule 32 thereof, expected of the first Respondent was to take out a summons from the Court requiring the Appellants to show cause and not an Originating Summons. Counsel submitted therefrom that the processes filed by the first Respondent in this matter were thus incompetent and that the lower Court ought to have declined jurisdiction.
In response, Counsel to the first Respondent stated that court forms are for mere guidance and they can be amended and/or adopted as the need arises on each occasion and the peculiarity of each case provided the court and the parties are not in doubt and/or at a loss as to what exactly the plaintiff is complaining about against the defendant and/or the grievances of the claimant and the claims and/or remedy wanted from the Court. Counsel submitted therefrom that the fact that the Originating Summons ex parte taken out by the first Respondent did not conform to Form 58 of the High Court Rules was of no moment and he referred to the case of Okpetu V. Commissioner of Police, Delta State (2001) FWLR (Pt 69) 1317. On the Originating Summons, Counsel submitted that it was in compliance with the provisions of Order 48 Rule 73 of the High Court of Kaduna State Civil Procedure Rules and was thus in order.
The summary of the case of the first Respondent in the originating processes filed at the lower was that sometime in the year 2000, it advanced credit facilities to one Alhaji Mahmud Mundi Aliyu in the sum of N22 Million with interest fixed at 25% and that the said Alhaji Mahmud Mundi Aliyu died on the 25th of May, 2002. It was its case that on 11th September, 2002 the first Appellant, as administrator of the Estate of the said late Alhaji Mahmud Mundi Aliyu wrote it a letter acknowledging the credit facility advanced to the deceased and the outstanding debt thereon with a promise to liquidate same from the Estate of the deceased. It was its case that thereafter the Appellants started foot dragging over the repayment of the debt despite its repeated demands.
It is obvious from this summary of facts that the first Respondent took out the originating processes in this matter as a creditor of the Estate of late Alhaji Mahmud Mundi Aliyu with a view to compelling the Appellants, as administrators of the Estate, to settle the indebtedness of the deceased. In doing this, the first Respondent relied on the provisions of Order 48 Rule 32 of the High Court of Kaduna State (Civil Procedure) Rules which states:
“Any person claiming to be a creditor or legatee, or the next of kin, or one of the next of kin, of a deceased, may apply for and obtain a summons from the court requiring the executor or administrator (as the case may be) of the deceased to attend before the court and show cause why an order for the administration of the property of the deceased should not be made.”
It is beyond contest that the word “summons” used in the provision can be interpreted to include an originating summons. Additionally, the provisions required the first Respondent to “apply for and obtain a summons from Court”. These words can also be interpreted to mean that the first Respondent should first seek leave of Court to issue the summons and, if it is so interpreted, the provisions did not provide the manner the application for leave should take.

The provisions did not also forbid the first Respondent from seeking for orders of injunction while so ‘applying for and obtaining the summons.’ In the Originating Summons ex parte filed by the first Respondent, the prayers sought were for an order to issue a summons against the Appellants and for orders of interim injunction. So how can the Appellants say that the originating processes taken out by the first Respondent were not in compliance with the Rules of Court?
Counsel to the Appellants appeared to have emasculated his thought process by his rigid adherence to technicality and he got carried away by fact that the Originating Summons ex parte was not in exact conformity with Form 58 in High Court Rules. Counsel obviously forgot that court forms are only meant to be guides and need not be rigidly followed and that the concern of a court of law at all times must be the substantial justice of a matter rather than rigid adherence to technicalities. This point was succinctly made by Niki Tobi, JCA (as he then was) in the case of Okpetu V. Commissioner of Police, Delta State (2001) FWLR (Pt 69) 1317, cited by Counsel to the first Respondent, at page 1333 thus:
“…court forms are generally guides and counsel is free to tailor them to the immediate needs of any matter. If the output of the tailoring exercise is in substantial conformity with the form and does not in any way mislead the adverse party or the court, courts of law will not raise their eyebrows of disapproval… Courts of law should not be weighed down with technical and abstract rules of court by way of court forms at the expense of examining the merits of the case on the scales of justice. They should try as much as they can to underplay rules of court when they come in direct confrontation with justice and fair play. They should lean in favour of justice than following barren rules of court, which are not helpful. The point is not made that the courts should have no regard for their own rules. No. That is not the point made. It will be foolish to suggest that. If the rules, and, therefore in our con the forms, are made for the courts, and they are, then the courts are under a duty to enforce them. But the moment their enforcement antagonizes justice or tries to ruin justice, then the courts should choose the path of justice.”

The Originating Summons ex parte and the Originating Summons taken out by the first Respondent in the instant case are not completely strange, alien or abhorrent to the provisions of order 48 Rule 32 of the High court of Kaduna State (Civil procedure) Rules pursuant to which the first Respondent commenced this action in the lower Court. Going further and even assuming that the processes were not in compliance with the Rules of Court, this Court will still not hold the action incompetent. In Bajoga V. The Government of the Federal Republic of Nigeria (2007) All FWLR pg 273, the court of Appeal stated that “the primary function of the court is to do justice to the parties. Where any procedural rule will work contrary to this, the harsh and strict rule has to be adjusted or to be made malleable to ensure that justice is done at all times. Failure to comply with rules should not result in the action being adjudged incompetent where the court had jurisdiction to entertain such action and where non-compliance with the rules of court does not affect the real root of the matter in contention.”
Similarly in Dragetanos Construction (Nig) Ltd V. Fab Madis Ventures Ltd (2011) 16 NWLR (pt 1273) 308, the Court of Appeal stated that rules of court should not be elevated to the status of statutes and that in line with the current jurisprudential climate which emphasizes substantial justice rather than strict adherence to technicality, where the interest of justice demands, the court should bend over backwards and jettison strict adherence to technical and mechanical justice as far as procedural rules are concerned. This statement was re-echoed by this Court in Amadu V. Yantumaki (2011) 9 NWLR (pt 1253) 161. The first and second issues for determination in this appeal are thus resolved against the Appellants.

On the third issue for determination, Counsel to the Appellants referred to the provisions of Order 1 rule 2 of the High Court of Kaduna State (Civil Procedure) Rules on when an action can be commenced by Originating Summons and submitted that a case in the nature being pursued by the first Respondent in this matter did not come within the provisions. Counsel conceded that Originating Summons can also be used to commence an action where there is no likelihood of dispute on the facts. Counsel stated that the issues raised on the Originating Summons in this matter touched on a claim by a bank against one of its customers, including a claim for interest thereon, and he submitted that such claims are not straight forward. Counsel stated that there were disputes between the parties on the issue of the indebtedness of the deceased as the first Respondent had sold and realized proceeds from the share certificates deposited by the deceased as collateral for the facility and that oral evidence was necessary to resolve the dispute.
In response, Counsel to the first Respondent stated that there were no disputes on the facts in this matter as the Appellants had written a letter admitting the indebtedness and that the sum claimed as outstanding balance on the debt was reflected as a debt due from the deceased to the first Respondent in the letters of administration issued to the Appellants. Counsel submitted that the Originating Summons procedure was thus appropriate in the circumstances.
It is settled law that it is appropriate for a claimant to adopt the Originating Summons procedure to commence an action where there is no dispute or likelihood of dispute on the facts of the matter-Ekpuk V. Okon (2002) FWLR (pt 84) 145, Famfa Oil Ltd V. Attorney General, Federation (2003) FWLR (Pt 184) 795, Etim V. Obot (2010) 12 NWLR (pt 1207) 108 and Dagazau v. Bokir International Co. Ltd. (2011) 14 NWLR (pt 1267) 261.

Now, it is not for a party to a case to conclude that there is likelihood of disputes in the case and to submit that as such Originating Summons is inappropriate. It is a decision for the Court and the Court will reach such a decision based on the processes filed by the parties. This point was made by Ikongbeh, JCA in Dagogo & Anor V. Attorney General of Rivers State (2002) FWLR (Pt 131) 1956 at 1981 thus:
“…whether a matter is or is not contentious does not depend on whether the parties say it is or is not. A respondent to an originating summons cannot by deliberately swearing to facts which are irrelevant and/or remote to the real issues submitted for determination, turn an otherwise non-contentious case to a contentious one. The matter must be left to the Judge to use his good sense of justice, guided by the applicable rules of the game, to weigh all the materials placed before him with a view to determining whether the matter is really contentious or non contentious.”

The Appellants have not filed any response to the Originating Summons of the first Respondent and on the basis of which the lower Court could have, and this Court will have, ascertained whether or not the facts in the matter were contentious. It is settled law that the arguments in the written address of Counsel do not constitute evidence upon which a court can act.

The assertion of the Appellants that the Originating Summons of the first Respondent is not appropriate to commence this matter is not based on concrete facts before the Court but on the wishes and whims of the Appellants and it is thus premature in the circumstances. The third issue for determination is resolved against the Appellants.

On the fourth issue for determination, Counsel to the Appellants referred to the provisions of Order 48 Rules 32 to 34 of the High Court of Kaduna State (Civil procedure) Rules and stated that by these provisions, the lower Court was only empowered to make orders for the administration of a property of a deceased after service of the summons on the administrators and that the lower Court cannot make an order as regards the property of the deceased without having first made an administration order. Counsel stated that lower Court breached these provisions by not only making an order against the property of the deceased before making an administration order, but also by making the order on a motion ex parte. Counsel stated that there was no urgency displayed on the affidavit in support of the motion to warrant the lower Court granting the order ex parte without service of the summons on the Appellants. Counsel submitted that non-service was a fundamental vice and amounts to denial of fair hearing. Counsel stated further that the lower Court did not place any time limit on the order of interim injunction and that it was made pending the hearing and determination of the originating summons. Counsel submitted that this was improper and that the orders should be discharged.
In response Counsel to the first Respondent, stated that the lower Court had jurisdiction to grant the ex parte order in this matter and that the grant of same did not amount to denial of Appellants’ right of fair hearing. Counsel submitted that the affidavit in support of the ex parte application disclosed the urgency of the matter and the danger the first Respondent was opened to as creditor and that once the lower Court was satisfied on the urgency of the application, it was within its discretionary power to grant same. Counsel stated further that the request of the Appellants to set aside the ex parte order was caught by lapse of time because Order 8 Rule 11 of the High Court of Kaduna State (Civil Procedure) Rules enjoins a party against whom an ex parte order is made to apply to set same aside within seven days. The application of the Appellants was not filed within seven days and Counsel submitted that it was too late in the day for them to complain.
It is not in contest that the orders of interim injunction sought by the first Respondent on the Originating Summons ex parte were an appeal to the discretionary jurisdiction of the lower Court. Discretion in the judicial and legal con means equitable decision of what is just and proper under the facts and circumstances of a particular case guided by the principles of law – Arta Industries (Nig) Ltd V. Nigerian Bank for Commerce & Industry (1998) 4 NWLR (Pt 546) 357 and Soyinka V. Oni (2011) 13 NWLR (pt 1264) 294.
The discretionary jurisdiction of the court forms part of the inherent power that is innate to the court once it is established. It is a jurisdiction that vests naturally in a court by virtue of its creation under the Constitution of the Federal Republic of Nigeria. Courts are the primary custodians of the Constitution and by reason of which they are inherently imbued with sacrosanct and far-reaching fundamental powers to preserve and uphold the rule of law – Gadi V. Male (2010) 7 NWLR (pt 1193) 225. The court’s discretion transcends all legal and equitable, and enables the court to make such orders as it thinks fit. This means that the court is entitled to make such order as may be fair and just in all circumstances of the case – Olusola V. Trust Properties Ltd (2010) 8 NWLR (pt 1195) 1.

Reading the orders made on the 29th of February, 2003 on the Originating Summons ex parte of the first Respondent, the lower Court granted the orders of interim injunction sought and made them to last until the determination of the Originating Summons filed. It is trite that the purpose or object of granting an order of interim injunction is to make sure that the subject matter of the litigation is kept in status quo pending or until the litigation. It is aimed at meeting a situation of real urgency or emergency before the respondent can be put on notice. Accordingly, the order must be restricted or limited to the preservation of the res pending the determination of a motion on notice Universal Trust Bank Ltd V. Dolmetsch Pharmacy (Nigeria) Ltd (2007) 16 NWLR (Pt 1061) 520. A court of law has no power, even under its inherent jurisdiction, to make an order of interim injunction to last the duration of a matter. This is a fundamental vice and a clear un-judicial and injudicious exercise of discretion under a wrong principle of law. This Court must intervene in such circumstances and discharge or set aside such orders, notwithstanding the lapse of the time within which the Appellants could apply to set aside the order as of right under the Rules of Court. The fourth issue for determination is resolved in favour of the Appellants.

On the fifth issue for determination, Counsel to the Appellants submitted that there were two methods listed in the High Court of Kaduna State Civil Procedure Rules by which the estate of a dead person can be administered. Counsel stated that one way is by means of the personal representatives voluntarily applying for letters of administration through the Probate Registry of the High Court and that the second is by compelling the personal representatives to carry out the administration of the Estate, where they fail or refuse to apply for letters of administration. Counsel stated that in the instant case, letters of administration have been issued and that as such the application of the first Respondent to compel the administrators to administer the Estate was a surplusage and an abuse of process. Counsel submitted that the administrators cannot be compelled to administer the Estate in a particular manner and that all an aggrieved party can do after issuance of letters of administration is to request the administrators to file accounts of their administration and that the prayers on the Originating Summons of the first Respondent were not for an account.
Counsel to the first Respondent did not directly respond to the arguments of the Appellants on this issue. This however does not mean that this Court must accept the arguments of the Counsel to the Appellants as gospel truth. This is because the address of Counsel is not binding on the Court. The Court must still assess the arguments – Oruboko V. Oruene (1996) 7 NWLR (pt 462) 555, Eya V. Olopade (2011) 11 NWLR (pt 1259) 505 and Independent National Electoral Commission V. Nyako (2011) 12 NWLR (Pt 1262) 439. In Edonkumoh V. Mutu (1999) 9 NWLR (Pt 620) 633, Ibiyeye, JCA stated at 652 E-F thus:
“It is pertinent to point out that the learned counsel for the first respondent did not proffer any response to this issue in his brief of argument. It follows therefore that he has little to urge on it. The fact that there is want of response by the first respondent is no licence to accede to the arguments and submissions of learned Counsel for both the appellant and the second to fourth respondents. Those submissions will still be meticulously considered and opined upon accordingly.”

The issue raised here by the Counsel to the Appellants is abuse of court process. Now, abuse of process is a concept; it is an idea or a general notion formed by generalization from particular examples. It is a concept that is imprecise. It involves circumstances and situations of infinite variety and conditions. In Messrs NV Scheep & anor V. The MV ‘S Araz’ & anor (2000) 15 NWLR (Pt 691) 622 at page 664 Karibi-Whyte JSC said of the concept thus:
“The legal concept of the abuse of the judicial process or the abuse of the procedure of the court is very wide. The scope and content of the circumstances of the material facts and conduct, which will result in such abuse, are infinite in variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of the plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may be constituted by irregularities in the pursuit of actions.”

Reading through the prayers sought on the Originating Summons of the first Respondent, they go beyond an order for the administration of the property and estate of late Alhaji Mahmud Mundi Aliyu (deceased). The prayers include claims for a debt owed the first Respondent by the Estate of late Alhaji Mahmud Mundi Aliyu.
One of the duties of the administrators of an Estate is to ascertain and pay the just debts of the Estate. A court process seeking that the administrators perform this vital duty cannot be said to amount to an attempt to harass, irritate or annoy the administrators unjustly. This suit cannot thus amount to a surplus and an abuse of the process of Court. The fifth issue for determination is resolved against the Appellants.

In conclusion, this appeal succeeds in part. The Ruling of the High Court of Kaduna State in Suit No KDH/KAD/110/2003 delivered by Honorable Justice A. A. Othman on the 12th of February, 2004 is hereby affirmed save for the portion of the Ruling refusing to discharge the ex parte orders of interim injunction made by the lower Court on the 29th of February, 2003. The ex parte orders of interim injunction made by the High Court of Kaduna State in Suit No KDH/KAD/110/2003 on the 29th of February, 2003, to wit:
i. An order of interim injunction restraining the administrators (defendants herein) of the property and estate of Alhaji Mahmud Mundi Aliyu (deceased), their agents, privies and/or any person whosoever acting on their instructions, from henceforth administering, tampering with, removing and dealing in anyway whatsoever, with the personal property and estate of and/or any of the properties of Alhaji Mahmud Mundi Aliyu (deceased) wheresoever lying, located and/or situated, particularly the sum of N6,123,280.16k credit balance of any current credit balance whatsoever in Alhaji Mahmud Mundi Aliyu (deceased) in Union Bank of Nigeria Plc Kaduna Branch current account pending the determination of the court’s summons and/or originating summons in this suit.
ii. An order of interim injunction restraining Union Bank of Nigeria Plc (fourth defendant herein) its agents, privies, staff and/or anybody whosoever acting on its instructions from releasing and/or further releasing to the administrators of the property and estate of Alhaji Mahmud Mundi Aliyu (deceased), their agents, privies and/or anybody whosoever acting on their behalf and/or instructions, any sum of money and/or further sum of money from the N6,123,280.16k credit balance or any current credit balance whatsoever in Alhaji Mahmud Mundi Aliyu (deceased) with Union Bank of Nigeria Plc Kaduna Branch pending the determination of the court’s summons and/or originating summons in this suit are hereby set aside and are thus discharged. The parties shall bear their respective costs on this appeal. These shall be the orders of this Court

DALHATU ADAMU, J.C.A., CFR: I have the privilege of reading the draft of the lead judgment of my learned brother Habeeb Adewale Olumuyiwa Abiru JCA in this appeal. I endorse the reasoning and the conclusion reached in the said lead judgment that the appeal succeeds in part. I affirm the ruling delivered in Suit No. KDH/KAD/110/2003 by Hon. Justice A.A. Othman on 12/2/2004. I hereby set aside the ruling refusing to discharge the ex-parte orders of interim injunction. The parties in this appeal shall bear their respective costs. No order as to costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read before now a copy of the judgment of my learned brother, Abiru, J.C.A., and I agree with his analysis of the issues raised in this appeal and his conclusion therein. I too, allow this appeal in part and set aside the ex-parte orders of interim injunction made by the lower in suit No. KDH/KHD/110/2003, on 29/2/2003.

Appearances

O. A. IroagalachiFor Appellant

AND

Bola Olotu
O. J. OpawaleFor Respondent