ACCESS BANK PLC v. CHIEF CHRISTIAN M. NWOKEDI & ANOR
(2013)LCN/6400(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of July, 2013
CA/E/236/2012
JUSTICES:
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
ACCESS BANK PLC – Appellant(s)
AND
1. CHIEF CHRISTIAN M. NWOKEDI
2. CHIEF GODWIN U. IBEKWE – Respondent(s)
RATIO
DEFINITION OF AN ABUSE OF COURT PROCESS
An abuse of the process of court occurs in a situation where a plaintiff in one action has instituted another or more than one action against the same defendant in the action in respect of the same subject-matter or for the same reliefs to the annoyance, irritation embarrassment or harassment of the defendant and with the aim of causing interference with the administration of justice. In OKAFOR v. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE ANAMBRA (1991) LPELR-241 (SC), (1991) 2 SCNJ 345 it was held that the multiplicity of actions on the same matter may constitute an abuse of the process of the court, but this is so only where the action is between the same parties and in respect of the same subject matter. In AKINOLA v. VICE-CHANCELLOR UNIVERSITY OF ILORIN (2005) ALL FWLR (PT. 259) 1934 at 1956, Onnoghen, JCA (as he then was) stated that “In all relevant cases, the general rule or principle is that an abuse of the process of the court is constituted when more than one suit is instituted between a plaintiff against a defendant in respect of the same subject-matter. Therefore for an action to be declared frivolous, vexations, oppressive and abuse of process of court, it must be shown that there are two or more actions between the same parties in respect of the same subject matter in either one or more actions at the same time.” See also SARAKI v. KOTOYE (1992) LPELR-3016 (SC). PER AKEJU, J.C.A.
WHETHER OR NOT A PERSON SHALL BE ALLOWED TO DENY THE TRUTH OF A THING WHERE HE CAUSED ANOTHER PERSON TO BELIEVE THE THING TO BE TRUE
By the provision of section 153 of the Evidence Act, (now Section 169 of Evidence Act (2011), when a person has by his act or omission intentionally caused or permitted another person to believe a thing to be true and to act on the believe, that person shall not be allowed in any proceeding between himself and that other person to deny the truth of the thing. See UDE v. OSUJI (1998) 13 NWLR (PT. 580) 1: IGA v. AMAKRI (1976) 11 SC 1. PER AKEJU, J.C.A.
THE GENERAL PRINCIPLE OF LAW ON THE AWARD OF GENERAL DAMAGES
The general principle of law is that the award of general damages is at the discretion of the trial court, and where such discretion has been exercised both judicially and judiciously, an appellate court will be loath to interfere therewith. An appellate court will therefore not upset an award of damages except where it is shown that the award had been based on wrong principles of law or that the amount awarded is too high or too low to make it an entirely erroneous estimate of what the plaintiff is entitled to. See IHEANACHO v. UZOCHUKWU (1997) 2 NWLR (PT. 487) 257; ODIBA v. AZEGE (1998) 9 NWLR (PT. 566) 370.PER AKEJU, J.C.A.
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the leading Judgment): This appeal is against the decision of the High Court of Anambra State, holden at Onitsha in the judgment delivered on 10/5/12 in respected of Suit No. 0/1/2010, commenced by the respondents through the Writ of Summons filed with the Statement of Claim on 16/3/10 for the following reliefs against the appellant as averred in paragraph 10 of the Statement of Claim:
a. a total sum of N32,500,000.00 (Thirty Two Million five Hundred thousand Naira) covering the Defendants’ rent due to the plaintiffs with respect to the Defendants’ sublease of the plaintiffs landed property at No. 6 New Market Road, Onitsha for the period 1st November, 2009 to 31st October, 2014.
b. N10,000,000 (Ten Million Naira) damages for the breach of the sublease agreement between the parties.
In the statement of defence of 7 paragraphs filed on 7/5/10, the appellant averred that the claim of the respondents be dismissed for want of merit and for being an abuse of the judicial process. The respondents filed a Reply to statement of defence, and at the hearing, the respondents called one witness while the appellant did not call any witness but cross examined the respondent’s witness. In the judgment of the trial court per Hon. Justice A. O. Okuma, the respondents’ claim for N32,500,000 was granted with an award of N1,500.000.00 damages out of the N10,000,000 claimed by the respondents.
Dissatisfied with the decision of the trial court, the appellant filed the Notice And Grounds of Appeal that originated this appeal on 14/5/12 with seven grounds of appeal, and in the Appellant’s Brief of Argument settled by G. B. Obi of counsel and filed on 16/7/12, the following issues were distilled for determination;
(i) Whether the decision of the High Court that the Suit is not an abuse of Judicial process is right.
(ii) Was the High Court right to have deemed the Statement of Defence as abandoned and its consequent evaluation of the case of the respondents from that stand point.
(iii) Whether the decision of the High Court that the respondents proved that there was a renewal of the sublease and entitled to the reliefs sought is correct.
(iv) Assuming there was a renewal of the sublease is it enforceable?
(v) Whether the High Court was right to have awarded the respondents’ claim of N32,500,000.00 being rent for the sublease and general damages of N1,500,000.00.
The Respondents’ Brief of Argument was prepared by Onyechi Araka and filed on 31/7/12, two issues were formulated for determination as follows:
1. Whether the lower court was in any respect wrong when it held that the institution and subsequent prosecution of the suit leading to this appeal by the respondents whilst Suit No. 0/182/2006 filed by a 3rd party to it was still pending did not constitute an abuse of court process.
2. Whether the lower court was in any respect wrong in granting the respondents’ reliefs having regard to the most compelling and unchallenged evidence proffered before it and abandonment of the appellant’s pleadings by the Appellant when she failed to profer any evidence to the contrary.
The respondents as plaintiffs at the trial court had claimed to be owners of a three storey building known as No. 6, Market Road, Onitsha, the ground and 1st floors of which were leased to Marina International Bank Limited for a term of six years from the 1st July of November, 2003 at the total of N25,200,000.00 i.e. annual rent of N4,200,000.00 which the sublessee paid to the respondents. The appellant in this appeal, Access Bank Plc later acquired the assets of the said Marina International Bank Ltd. including the demised premises during the pendency of the sublease. The appellant indicated her intention to renew the tenancy and to retain the premises through the letter of 5/5/09 and the respondents through the letter of 27/5/09, accepted the offer of renewal of the tenancy for a period of five years on an annual rent of N6,500,000.00.
In another letter dated 6/10/09, the respondents again reiterated their acceptance of the renewal of the sublease; the appellant, while still holding on to the premises after the expiration of the six years lease, failed to respond to the respondents’ letters and at the expiration of the term of six years granted under the sublease, the respondent in a letter of 4/12/09 to the appellant demanded that an annual rent of N6,500,000.00 be paid for another term of 5 years making N32,500,000.00 (Thirty Two Million Five Hundred Thousand Naira). The respondents did not pay the rent and did not vacate the premises, hence the suit that led to this appeal.
The appellant had put up the defence that after the execution of the sublease agreement in respect of the demised premises one Lajiga Daniel Rotibi acting on behalf of the beneficiaries of the Estate of Late Chief S. O. Rotibi instituted an action at the High Court of Onitsha against the respondents, the appellants and some other persons in respect of the property and in view of the pendency of that suit, (No. 0/182/2006), the appellant was not liable to pay rent for the demised premises to the respondents.
The trial court found and held that the respondents established their case on preponderance of evidence and granted the relief for N32,500,000.00 and awarded N10,000,000 as damages.
On whether the action of the respondents commenced after Suit No. 0/182/2006 constituted an abuse of process, the appellant had argued that the claim in that Suit wherein the respondents were made the 1st and 2nd defendants and the appellant the 4th defendant was in respect of the same subject-matter as in the instant case, and the institution of this case for rent in respect of the property at No. 6, New Market Road Onitsha, is an abuse of court process. It was the contention of the appellant that the institution of the instant case was improper, in bad faith and an embarrassment to the appellant and therefore constituted an abuse of process, and the trial court was in error to have held otherwise, citing AFRICAN RE.CORP. v. JDP CONST (NIG) Ltd (2003) 13 NWLR (PT. 838) 699. The learned Counsel had contended that “the High Court ought to have either stayed proceedings in this suit pending the determination of Suit No. 0/182/2006 or struck same out.”
On the issue whether the Statement of Defence of the appellant was abandoned at the trial, the learned Counsel contended that though the appellant as defendant did not adduce oral evidence, it is clear that at the close of the respondents’ case with the evidence of PW1, the appellant was able to establish the pendency of suit No. 0/182/2006; that there was no oral or written agreement between the parties for a new sublease or renewal of the existing one which are the facts that formed the basis of the appellant’s defence to the instant suit.
It was submitted that a party can lead evidence in proof of his defence through cross examination of an opposing witness, and such evidence is admissible in proof of the averments in the statement of defence; citing DAGGASHI v. BULAMA (2004) 14 NWLR (PT. 892) 144; BAMIGBOYE v. OLAREWAJU (1991) 4 NWLR (PT. 184) 132.
It was contended that the trial court was therefore in error to have held the view that the appellant did not lead any evidence in proof of her defence which error had affected the evaluation of the evidence and influenced the finding of the trial court and its utmost decision which occasioned a miscarriage of justice and cannot be allowed to stand; AGBI v. OGBEH (2006 11 NWLR (PT. 990) 65.
On the 1st issue whether the instant action is an abuse of court process in the light of Suit No. 0/182/2006, the learned counsel for the respondent cited the case of A-G OF THE FEDERATION v. ATTORNEY-GENERAL OF ABIA STAFF (2001) 11 NWLR (PT. 725) 774 on the definition of abuse of court process. The case of NWEKE v. UDOBI (2001) 5 NWLR (PT. 706) 459 was also cited to submit that an abuse of the process of court occurs where the action is between the same parties with respect to the same subject-matter. It was contended that the instant case and Suit No. 0/182/2006 are between different parties and for different reliefs and subject-matter, adopting AFRICAN RE CORP LTD v. JDP CONSTRUCTION NIG. LTD. (supra) and OGOEJIOFO v. OGOEJIOFO (2002) 12 NWLR (PT. 780) 185 cited by the appellants’ Counsel. The condition that the instant suit must have been initiated malafide is also not present in this case as argued by counsel who cited C.B.N. v. AHMED (2001) 11 NWLR (PT. 724) 408: R – BANKAY NIG LTD v. CADBURY NIG. PLC (2012) 9 NWLR (1306) 596.
On the second issue of whether there was abandonment of appellant’s pleadings by failure to proffer oral evidence thereon, the learned Counsel cited the case of OGUNYADE v. OSHUNKEYE (2007) 15 NWLR (PT. 1057) 246 on the legal effect of this failure to call evidence in proof of the pleadings which as submitted by Counsel is that the only evidence available upon which the court is to make findings is that of the plaintiff. It was further contended that the facts which the appellant had sought to establish through the questions in cross examination were that the respondents sought rent for a period of 5 years and that the parties did not enter into an agreement for a lease of 5 years which facts are not borne out by the statement of defence. It was submitted that pleadings do not constitute evidence citing AGBI v. OGBEH (2006) 11 NWLR (PT. 990) 65 and EZEANAH v. ATTA (2004) 7 NWLR (PT. 417) 1.
This appeal will be considered and determined on the basis of the five issues as formulated by the appellant, and which the respondent also argued in the respondents’ brief.
It is the contention of the appellant on the first issue that the filing of the suit that led to this appeal constituted an abuse of court process having been commenced by the respondents during the pendency of suit No. 0/182/2006. The respondents argued per contra that the two suits are not the same in any respect and one cannot amount to an abuse of court process.
The learned trial judge had found at page 42 of the record of appeal that “the plaintiffs are not the initiators of the suit No. 0/182/2006 and cannot by instituting this Suit be said to have initiated multiple suits against the same defendant to her annoyance and irritation. To the extent of the above finding the objection of the learned defence Counsel as to the competence of this suit is therefore overruled.”
An abuse of the process of court occurs in a situation where a plaintiff in one action has instituted another or more than one action against the same defendant in the action in respect of the same subject-matter or for the same reliefs to the annoyance, irritation embarrassment or harassment of the defendant and with the aim of causing interference with the administration of justice. In OKAFOR v. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE ANAMBRA (1991) LPELR-241 (SC), (1991) 2 SCNJ 345 it was held that the multiplicity of actions on the same matter may constitute an abuse of the process of the court, but this is so only where the action is between the same parties and in respect of the same subject matter. In AKINOLA v. VICE-CHANCELLOR UNIVERSITY OF ILORIN (2005) ALL FWLR (PT. 259) 1934 at 1956, Onnoghen, JCA (as he then was) stated that “In all relevant cases, the general rule or principle is that an abuse of the process of the court is constituted when more than one suit is instituted between a plaintiff against a defendant in respect of the same subject-matter. Therefore for an action to be declared frivolous, vexations, oppressive and abuse of process of court, it must be shown that there are two or more actions between the same parties in respect of the same subject matter in either one or more actions at the same time.” See also SARAKI v. KOTOYE (1992) LPELR-3016 (SC).
It is therefore important that to constitute an abuse of court process, the actions must between the same parties and in respect of the same subject-matter.In the instant case, it is not in anyway disputed that suit No. 0/182/2006 was filed by one Lajiga Daniel Rotibi for himself and on behalf of the beneficiaries of the estate of Late Chief S. O. Rotibi against the appellant, the respondents and other persons, in respect of the property at No. 6, New Market road, Onitsha, the reliefs sought in the two suits are different and the said Lajiga Daniel Rotibi and other parties in 0/182/2006 are not parties to this action making the parties to be different in the two suits.
In DINGIYADI v. INEC (2010) 6-7 MJSC 1, Adekeye, JSC stated the position thus at page 178;
“This brings into focus what constitutes an abuse of court or judicial process. Brevi Manu decided authorities have shown that what constitutes an abuse of court process is a matter of fact which must be established by credible and admissible evidence. It may be in both proper and improper use of the judicial process in litigation. The list is in exhaustive but it includes instituting multiplicity of actions in the same matter between the same parties in as most disturbing manner.”From the foregoing the appellant has not succeeded in establishing the required ingredients to show the existence of an abuse of court process in the instant case, and I resolve this issue against the appellant.
The second issue is whether the court was right to have deemed the statement of defence of the appellant and its consequent evaluation of the case of the respondent from that stand point.
It is also clear from the record of appeal that the appellant who filed a statement of defence at the trial court did not call any witness to adduce oral evidence thereon, but cross examined the respondents’ witness, PW1 through Counsel. Upon evaluation of the evidence in the case, the learned judge held that defendant abandoned her statement of defence, and that the evidence of the plaintiffs’ witness as to the existence of sublease between the plaintiffs and Marina International Bank Ltd, the acquisition of the assets and liability of it by the defendant the correspondence between the plaintiffs and the defendant on the renewal of the tenancy were therefore deemed by the court as unchallenged and deemed admitted, “particularly where the learned Counsel did not cross examine the plaintiffs’ witness successfully on these issues.” See pages 142-143 of the record of appeal.
I am convinced from the above that the trial court that has the primary duty of evaluating the evidence adduced at the trial had taken due cognisance of the facts elicited by the appellants’ Counsel under cross examination of the respondents’ witness and had considered those facts in making its findings.This issue is also resolved against the appellant.
On the third issue, which is about the decision of the court on the renewal of the sublease and entitlement of the respondents to their reliefs, the learned Counsel for the appellant contended that the finding of the trial court that there was a renewal of the sublease was not borne out by the evidence on record in that by exhibit A, the agreement tendered by the parties, a renewal thereof shall be for a period of six years on the same terms and conditions as exhibit A except as to the rent payable which is to be paid not later than six months before the expiration of the renewed term, all of which the offer of the respondents for renewal of the sublease did not comply with.
It was submitted that the trial court based its decision on irrelevant factors and omitted to evaluate the evidence on record, citing BASIL v. FAJEBE 6 NSCQR 269.
The appellant had contended that a tenant who continues in occupation of a premises after expiration of his tenancy has become a statutory tenant and the proper step for the respondents was to commence proceedings for recovery of the property.
The respondents’ Counsel argued that the appellant did not at anytime react to the indication by the respondents for renewal of the sublease for a period of 5 years the appellant had failed to comply with the conditions for the option to renew in that exhibit B by the appellant was written six months before the expiration of the existing sublease.
It is clearly established by evidence in this case that by the letter of 05/5/09 which is exhibit B, the appellant informed the respondents that “We are by this letter expressing our intention to retain the use of the aforesaid property depending on our reaching a mutually acceptable term for the occupation.
We therefore request that the terms for the renewal of the tenancy be communicated to us soon…”.
By the letter of 27/5/09 exhibit C, the respondents expressed their preparedness to renew the tenancy on the terms which include that the yearly rent shall be N6.5m for a period of 5 years which terms were also replicated in the letter of 6/10/09, exhibit D, by the respondents. The appellant showed no opposition to any of the above terms but remained in possession up to the commencement of this action.
From the foregoing the learned trial judge found that the appellant had by her conduct accepted the terms of the renewal as stated by the respondents.
It must be noted in this case that the respondent made no other offer so as to defeat the conditions given by the respondents, but simply remained in the premises without showing any disagreement. In that circumstance the conduct of the appellant must be taken as an acceptance of the conditions given by the respondents and it will be inequitable for the appellant to use her conduct to defeat the claim of the respondents.
By the provision of section 153 of the Evidence Act, (now Section 169 of Evidence Act (2011), when a person has by his act or omission intentionally caused or permitted another person to believe a thing to be true and to act on the believe, that person shall not be allowed in any proceeding between himself and that other person to deny the truth of the thing. See UDE v. OSUJI (1998) 13 NWLR (PT. 580) 1: IGA v. AMAKRI (1976) 11 SC 1.I agree with the learned trial judge and I resolve this issue against the appellant.
Issue No. 4 about whether the renewed lease is enforceable is to me a non issue in this appeal in that what was done was a renewal of an existing lease on the terms and in the manner understood by both parties. It is also resolved against the appellant.
The fifth issue concerns the award of general damages of N1.5m by the trial court which the appellant has contended that no evidence was led in its proof and was wrongly awarded by virtue of paragraphs 2, 3, 4, 5 and 7 of the sublease Agreement.
For the respondents it was submitted that no specific proof of general damages is required in that it is presumed to be the direct consequence of the act complained of. It was submitted on the authority of NDINWA v. NWAEBO (2001) 6 NWLR (PT. 709) 320 that an award of general damages that is fair and reasonable should not be disturbed on appeal, a person seeking that the award be set aside must show that it was made upon wrong principle of law, or that the amount awarded is so ridiculously high or low based on an erroneous estimate, citing ETIM v. IGP (2001) 11 NWLR (PT. 724) 287; NWACHUKWU v. EGBUCHU (1990) 3 NWLR (PT. 139) 435; NWABOSI v. ACB LTD. (1995) 6 NWLR (PT. 404) 658.
It was further submitted that the claimant of general damages does not need to plead or proof it as it is awarded at the discretion of the court; ACME v. KWSB (1999) 2 SC 1; WILFRED OMONUWA v. B. A. WAHABI TRADING AS B. A. WAHABI & SONS (1976) 4 SC 37.
The respondents have, by the second leg of their claim sought N10 million general damages for the breach of the sublease agreement between the parties, out of which the trial court awarded N1,500,000 on the ground of appellant’s failure to comply with the stipulations in the sublease agreement.
The general principle of law is that the award of general damages is at the discretion of the trial court, and where such discretion has been exercised both judicially and judiciously, an appellate court will be loath to interfere therewith. An appellate court will therefore not upset an award of damages except where it is shown that the award had been based on wrong principles of law or that the amount awarded is too high or too low to make it an entirely erroneous estimate of what the plaintiff is entitled to. See IHEANACHO v. UZOCHUKWU (1997) 2 NWLR (PT. 487) 257; ODIBA v. AZEGE (1998) 9 NWLR (PT. 566) 370.
The award of N1,500,000.00 by the trial court in the instant case out of the amount of N10,000,000.00 claimed by the respondents is in my view a reasonable exercise of discretion which should not be upturned.
I resolve this issue against the appellant.
Since I have resolved all the issues in the appeal against the appellant, the result is that the appeal has no merit or substance and it is dismissed. The judgment of the trial court is upheld.
I award costs of N150,000.00 in favour of the respondents.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I agree.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my learned brother, ISAIAH OLUFEMI AKEJU, JCA. I agree with the reasoning and conclusions there. I also hold that this appeal lacks merit and it is equally dismissed. The appellant shall pay cost of N50,000 to the respondent.
Appearances
G. B. Obi For Appellant
AND
Onyechi Araka For Respondent
