AMSAG (NIG) LTD & ANOR v. AMSLUK TRANSPORT (NIG) LTD & ORS
(2020)LCN/14088(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Thursday, March 12, 2020
CA/J/316/2017
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
1. AMSAG NIGERIA LIMITED 2. ALH. MUSA GUMAU APPELANT(S)
And
1. AMSLUK TRANSPORT NIGERIA LIMITED 2. PETROL TANKER DRIVERS ASSOCIATION 3. DANLADI BUKUR RESPONDENT(S)
RATIO
WHETHER OR NOT A COMPANY IS A SEPARATE ENTITY FROM ITS SUBSCRIBERS
That is the settled position of the law as long established by the authority of Salomon v. Salomon (1897) AC 22, a position further cemented by the Companies and Allied Matters Act (CAMA) of Nigeria. That obvious point was even very recently reconfirmed by the apex Court (Kekere-Ekun, J.S.C.) inBulet Int Nig. Ltd & Anor v. Olaniyi & Anor (2017) 6-7 S.C (PT 1) 1 @ 39-40, when it said that:
“A company is a different person from the subscribers to its Memorandum and is neither agent nor trustee for them. It also has the capacity to enter into any agreement in its corporate name: ….. See also Sections 37 and 38 of C.A.M.A. A subsidiary company has its own separate legal personality. In general, the acts a subsidiary company cannot be imputed to the parent company and vice versa.” PER UGO, J.C.A.
THE CONCEPT OF 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 Vs 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.”
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 Vs Okotie-Eboh (1986) 1 NWLR (Pt 16) 264, Saraki Vs Kotoye (1992) 9 NWLR (Pt 264) 156, Jimoh Vs Starco (Nig) Ltd (1998) 7 NWLR (Pt 558) 523 and Abubakar Vs Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (Pt 1066) 319.
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 Vs Kotoye supra, Ogoejeofo Vs Ogoejeofo (2006) 3 NWLR (Pt 966) 205 and Ali Vs Albishir (2008) 3 NWLR (Pt 1073) 94.PER ABIRU, J.C.A.
WHEN IS THERE SAID TO BE A MULTIPLICITY OF ACTIONS?
The question is – when is there said to be a multiplicity of actions? In Okafor Vs Attorney General, Anambra State (1988) 2 NWLR (Pt 79) 736, the Supreme Court said that “it is the law that multiplicity of action on the same matter may constitute an abuse of process of the Court, but that this is so only where the action is between the same parties with respect to the same subject matter.” In Saraki Vs Kotoye supra, the Supreme Court also stated that multiplicity of actions arise where a second action is commenced “on the same subject matter against the same opponent on the same issues.” In Ikine Vs Edjerode (2001) 18 NWLR (Pt 745) 466, the Supreme Court reiterated on page 488 that “the law is that abuse of Court process in regard to multiple actions between the same parties on the same subject matter may arise when a party improperly uses judicial process to the irritation, annoyance and harassment of his opponent not only in respect of the same subject matter but also in respect of the same issues in the other action.” PER ABIRU, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): The facts of this interlocutory appeal are not complicated. Appellants who were two out of four defendants to the 1st Respondent’s Suit No PLD/J/595/2016 in the High Court of Plateau State sought to dismiss it on grounds that it constituted an abuse of judicial process given that they had earlier commenced at the Upper Area Court III Plateau State in Case No. UAC 111/ DCR/213/2016 a private criminal complaint of criminal breach of trust and criminal breach of contract against (1) one Alhaji Yusuf Adamu (2) Amsluk Petroleum Nigeria Ltd, (3) Bala Musa and (4) Petrol Tanker Drivers Union (PTD) Jos. The civil action of 1st respondent, they therefore argued, was an attempt to frustrate their said criminal complaint and so constituted an abuse of judicial process. Their reasoning was founded on the fact that in their opinion, both 1st Respondent (Amsluk Transport Nigeria Limited) and Amsluck Petroleum Nigeria Ltd, the 2nd accused person in their criminal complaint, were ‘owned’ by the same person, Yusuf Adamu, 1st accused person in their private criminal complaint, and that both
1
suits related to the events of 17th June 2016 in Jos concerning the seizure and diversion of its petroleum products by Amsluck Petroleum Nigeria Ltd and Yusuf Adamu..
On these grounds, they applied, by way of preliminary objection, to the High Court of Plateau State that the civil case of 1st respondent against them pending there should be struck out for abuse of process especially as their criminal complaint was still pending at the time of its commencement. That argument did not find favour with Longji J. (recently retired) of the Plateau State High Court who, after giving the facts underpinning the application thus:
“The only reason given for the preliminary objection against this suit is that, the subject matter of this suit is also a subject matter of a suit pending at the Upper Area Court III, Jos. From the deposition of the applicant, it is that the case at the Upper Area Court is a direct criminal case and that this case before this Court was repetition and attempt to frustrate the case at the Upper Area Court.”
tersely ruled, dismissing the objection thus:
“I have considered the arguments for and against and
2
I do not want to dissipate my energy in futility. A criminal case is different from a civil case. The two cannot be the same.
“Also that the case at the Upper Area Court is a direct criminal case, I asked the question: who authorized its institution? And can the Upper Area Court be higher than the High Court?
“I overrule the preliminary objection and dismiss it with a wave of the hand. I consider the application as vexatious.
“NB: see the cases of Akilu v. Fawehinmi (No.2) (1989) NWLR (PT 102)122 (SC) & NITEL v. Awala (2003) 3 NWLR (PT 753)1 C.A.”
Vexed by that decision, Appellants have brought the instant appeal and formulated the following two issues (which 1st respondent also adopted) from their four-ground Notice of Appeal for us to determine:
1. Whether Upper Area Court right in overruling their Notice of Preliminary objection considering the circumstances of the case and the Direct Criminal Complaint filed by them at the Upper Area Court, Jos.
2. Whether Upper Area Court was not misdirected when it raised an issue suo motu and ruled on it without inviting parties to address it more so as the
3
said issue was not raised by any of the parties.
Appellants in their brief of argument first related the facts of the case. There, after asserting, without any evidence to support it, that Alhaji Yusuf Adamu also owned 1st respondent, and further referring repeatedly to 1st respondent as Amsluk Petroleum Nigeria Limited, and accusing 1st respondent of taking all the actions Alhaji Yusuf Adamu and Amsluk Petroleum Nigeria Limited took in that criminal complaint both in the Upper Area Court and on appeal to the High Court, they argued that the civil action of 1st respondent constituted abuse of judicial process given the existence of their criminal complaint before the Upper Area Court so it ought to have been struck out by Longji J. of the Plateau State High Court. They cited a host of cases on abuse of judicial process and invoked dictum from my lead judgment in Oniyide v. Oniyide (2018) LPELR – 44240 (C.A.) p. 35-47 in support of their right to institute criminal complaint.
On issue 2, they argued that the lower Court in its very short ruling earlier reproduced raised an issue suo motu without inviting parties to address it and same caused
4
miscarriage of justice and breached their right to fair hearing. Like they did in issue 1, they also cited a number of authorities on this area of the law.
First respondent, being the only party to respond to the appeal, on its part, while recognizing that multiplicity of suits by the same plaintiff against the same defendants in respect of the same subject matter is prima facie vexatious and oppressive and can constitute abuse of process, argued that not only is appellants’ objection and this appeal founded on a mix-up of the real parties in the two cases, the law is also that both criminal and civil suit can proceed pari passu as they have different substance in claim/complaint, styles of proof/weight and end result. It also made the point that the substance of the case and parties in the criminal complaint of appellants and its civil action were not the same so the processes of Court were not being abused by its civil suit.
On issue 2, it argued that not only did issue 2 not arise from appellants’ grounds of appeal, no issue was actually raised suo motu by the trial judge and no answer given by the him to the question in issue, which
5
question at best, it continued, was only raised rhetorically by the trial judge so no miscarriage of justice was caused to appellants.
I think the only real issue in this appeal is whether civil suit No. PLD/J/595/2016 of Amsluck Transport Nigeria Limited against appellants can be seriously labeled an abuse of judicial process; for the issue of the lower Court raising an issue suo motu, whatever such phantom issue is, does not arise. The rhetorical question the trial judge posed to himself was:
“I asked the question: who authorized its institution? And can the Upper Area Court be higher than the High Court?”
No answer was given by His Lordship to the question so the issue of the Court raising an issue suo motu and deciding it without input from counsel and so same constituting abuse of process (which issue it is now even the law must be of fact and not of law to affect such decision: see Effiom & Anor v. C.R.S.I.E.C. (2010) 14 NWLR (PT 1213) 603) does not arise at all.
And returning to the principal issue of likely abuse of process by reason of appellants’ earlier private criminal complaint of breach of trust and
6
criminal breach of contract against Amsluck Petroleum Nigeria Limited, I am also inclined, like the lower Court, to dismiss it with a wave of the hand; for the entire objection of appellants was brought on the mistaken belief that first Respondent Amsluck Transport Nigeria Limited, who is this plaintiff in the civil suit for declarations and damages against appellants for impounding what it claims is its haulage truck, is the same person as Amsluck Petroleum Nigeria Limited, one of the accused persons in its private criminal complaint. Even keeping aside first respondent’s contention that Alhaji Yusuf Adamu, who appellants assert is the owner of both companies, is only a Director of the two companies, it is clear that appellants’ contention lacks foundation in law. The two companies – Amsluck Petroleum Nigeria Limited and Amsluck Transport Nigeria Limited – are different and separate entities each separately responsible for its actions and liabilities. That is even assuming that one is a parent company of the other or the two have the same subscriber, Alhaji Yusuf Adamu. That is the settled position of the law as long established by the
7
authority of Salomon v. Salomon (1897) AC 22, a position further cemented by the Companies and Allied Matters Act (CAMA) of Nigeria. That obvious point was even very recently reconfirmed by the apex Court (Kekere-Ekun, J.S.C.) inBulet Int Nig. Ltd & Anor v. Olaniyi & Anor (2017) 6-7 S.C (PT 1) 1 @ 39-40, when it said that:
“A company is a different person from the subscribers to its Memorandum and is neither agent nor trustee for them. It also has the capacity to enter into any agreement in its corporate name: ….. See also Sections 37 and 38 of C.A.M.A. A subsidiary company has its own separate legal personality. In general, the acts a subsidiary company cannot be imputed to the parent company and vice versa.”
It is thus incorrect to argue that a criminal action commenced by appellants against Amsluck Petroleum Nigeria Limited is against 1st respondent, Amsluck Transport Nigeria Limited, and makes the latter’s civil action against the former’s prosecutors duplicitous and abuse of judicial process. That is a completely fallacious argument.
This appeal therefore fails and is here dismissed by me while the
8
decision of the trial High Court dismissing appellants’ preliminary objection is here affirmed.
There shall be costs of ₦50,000.00 against appellants and in favour of 1st respondent.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Boloukuromo Moses Ugo, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusion reached therein.
The issue calling for resolution in this appeal is whether the lower Court was in error in its finding that the suit commenced before it as Suit No PLD/J/595/2016 by the first Respondent, as claimant, against the Appellants and the third and fourth Respondents, as first to fourth defendants, praying for declaratory orders and damages for the seizure and detention of its haulage truck did not amount to an abuse of process on the ground that it was not a multiple action of the private criminal complaint of criminal breach of trust and criminal breach of contract earlier made by the Appellants in the Upper Area Court, Plateau State in Case No UAC
9
111/DCR/21 3/2016 against four persons namely (i) Alhaji Yusuf Adamu, (ii) Amsluk Petroleum Nigeria Ltd, (iii) Bala Musa and (iv) Petrol Tankers Drivers Union.
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 Vs 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
10
the pursuit of actions.”
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.
11
See the cases of Jadesinmi Vs Okotie-Eboh (1986) 1 NWLR (Pt 16) 264, Saraki Vs Kotoye (1992) 9 NWLR (Pt 264) 156, Jimoh Vs Starco (Nig) Ltd (1998) 7 NWLR (Pt 558) 523 and Abubakar Vs Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (Pt 1066) 319.
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 Vs Kotoye supra, Ogoejeofo Vs Ogoejeofo (2006) 3 NWLR (Pt 966) 205 and Ali Vs Albishir (2008) 3 NWLR (Pt 1073) 94.
The specie of the abuse of process canvassed by the Appellants is multiplicity of actions. The question is – when is there said to be a multiplicity of actions? In
12
Okafor Vs Attorney General, Anambra State (1988) 2 NWLR (Pt 79) 736, the Supreme Court said that “it is the law that multiplicity of action on the same matter may constitute an abuse of process of the Court, but that this is so only where the action is between the same parties with respect to the same subject matter.” In Saraki Vs Kotoye supra, the Supreme Court also stated that multiplicity of actions arise where a second action is commenced “on the same subject matter against the same opponent on the same issues.” In Ikine Vs Edjerode (2001) 18 NWLR (Pt 745) 466, the Supreme Court reiterated on page 488 that “the law is that abuse of Court process in regard to multiple actions between the same parties on the same subject matter may arise when a party improperly uses judicial process to the irritation, annoyance and harassment of his opponent not only in respect of the same subject matter but also in respect of the same issues in the other action.”
What these cases require a Court to do when faced with an issue of multiple actions constituting an abuse of process is to look at the processes filed in the two actions
13
and see whether they are between the same parties on the same subject matter and on same or very similar issues. Looking at the contents of the processes filed in the lower Court in Suit No PLD/J/595/2016 and those filed before the Upper Area Court, Plateau State in Case No UAC 111/DCR/213/2016 and scrutinizing them painstakingly, it is obvious that the parties in the two actions are not the same. The first Respondent that commenced Suit No PLD/J/595/2016 and made the claims therein, Amsluk Transport Nigeria Limited, is not a party to the action before the Upper Area Court. The contention of the Appellants that the company shares a common director in the person of Alhaji Yusuf Adamu, the second defendant in the matter in the Upper Area Court, with Amsluk Petroleum Nigeria Ltd, the first defendant in the Upper Area Court, did not make the first Respondent the same entity as Amsluk Petroleum Nigeria Ltd. They are two different entities in the eyes of the law.
Further, the subject matter of and the issues arising for determination in the two actions are completely different. The subject matter of Suit No PLD/J/595/2016 is the alleged illegal seizure and
14
detention by the Appellants and the third and fourth Respondents of the haulage truck of the first Respondent which was being used to transport petroleum products belonging to Oando Plc at the material time, while the subject matter of Case No UAC 111/DCR/213/2016 was the alleged failure of Amsluk Petroleum Nigeria Ltd to deliver petroleum products it was contracted to do by the Appellants. The issues before the lower Court in Suit No PLD/J/595/2016 are whether the Appellants and the third and four Respondents did seize the haulage truck as alleged by the first Respondent and, if they did, whether the seizure was illegal and consequent on that, whether the first Respondent is entitled damages. The issues before the Upper Area Court in Case No UAC 111/DCR/213/2016 are whether there was a haulage contract between the Appellants and defendants in the case and, if so, whether the defendants failed to honor the contract and, consequent on that, whether the actions of the defendants in the case were criminal in nature or done with a criminal intent.
It is clear that the lower Court was very correct when it found that the two suits did not constitute a
15
multiplicity of actions and that Suit No PLD/J/595/2016 was not an abuse of process. This appeal is downright frivolous, vexatious and an unnecessary waste of the time of this Court. I too hereby dismiss the appeal and affirm the decision contained in the Ruling of the High Court of Plateau State delivered by Longji J. In view of the recent retirement of Longji J from the Bench of the High Court of Plateau State, I hereby direct that the case file of the matter by remitted to the Chief Judge of the High Court of Plateau State for reassignment to another Judge for an accelerated hearing of the case on the merits. I abide the order on costs in the lead judgment.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA. The facts are well set out and the issues canvassed in the appeal ably considered. Therefore I agree with the reasoning and conclusion.
I too dismiss the appeal for lacking in merit.
I abide by the consequential orders made therein including the order on cost.
16
Appearances:
S.G. Oyafemi Esq. For Appellant(s)
John Sakanas Esq. – for 1st Respondent
2nd and 3rd Respondent were unrepresented For Respondent(s)
