AQUITANE OIL & GAS LTD v. AMCON
(2020)LCN/14355(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, June 11, 2020
CA/L/1017/2018
Before Our Lordships:
Mohammed Lawal Garba Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
AQUITANE OIL & GAS LTD APPELANT(S)
And
ASSET MANAGEMENT CORPORATION OF NIGERIA RESPONDENT(S)
RATIO
THE CONCEPT OF ABUSE OF COURT PROCESS
The concept of abuse of the process of Court has attracted some fair amount of judicial attention as to illuminate any lingering opacity. According to KARIBI-WHYTE, JSC:
It is the law that 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 with respect to the same subject matter. The Court has a duty in such a situation to interfere to stop an abuse of its process. See Okorodudu v. Okoromadu (1977) 3 S.C. 21. This is not such a case. The motion to set aside the Judgment, and the appeal to the Supreme Court, now withdrawn, but in respect of the same subject matter were not instituted by the same parties. – See Oyegbola v. Esso West Africa Inc . (1966) 1 All N.L.R.170. See OKAFOR & ORS VS. AG & COMMISSIONER FOR JUSTICE & ORS (1991) LPELR-2414(SC) at 34.
OGUNDARE, JSC further expounded the position of the law on the subject thus:
In Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 this Court dealt exhaustively with what constitutes abuse of process of Court. In his lead judgment in the case, Karibi-Whyte, JSC observed at pages 188-189:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3SC 21; Oyegbola v. Esso West African Inc (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se.
The abuse consists in the intention, purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (pt. 119) 6. PER OYEWOLE, J.C.A.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Lagos Judicial Division, holden at Lagos, delivered on the 22nd February, 2018 by IDRIS, J. (as he then was).
The Respondent had secured orders ex parte against the Appellant from the trial Court in the following terms:
(1) An order is made granting possession of the property known as Aquitane Oil and Gas Limited Terminal/Tank Farm and situate at Ibru Complex, along Westminister Road, Ibafon, along Apapa-Oshodi Expressway, Lagos State, to the Claimant/Applicant pending the determination of the substantive suit.
(2) An order is made directing the Deputy Chief Registrar/Deputy Sheriff and the Inspector General of Police/Lagos State Commissioner of Police, to give necessary directives and take all such actions as are necessary to give effect to such orders as may be given by this Court.
(3) An order is made directing the Inspector General of Police/Lagos State Commissioner, their officers and men to provide the necessary securities to secure the property known as Aquitane Oil and Gas Limited
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Terminal/Tank Farm and situate at Ibru Complex, Ibafon, Olodi Apapa, Lagos State.
On being served, the Appellant took steps to set aside the said orders and filed a Motion on Notice dated 25th January, 2018 wherein it sought the following orders in the alternative thus:
1. Dismissing this suit for being an abuse of the Court process having been filed during the pendency of Suit No. FHC/L/CS/1122/2012- Asset Management Corporation of Nigeria v. Aquitane Oil & Gas ltd.
FURTHER OR IN THE ALTERNATIVE TO RELIEF 1 ABOVE:
2. Discharging and/or setting aside the orders granted by the Honourable Court ex-parte on January, 19, 2018 (“the January 19 Order”).
FURTHER TO RELIEFS 1 AND 2 ABOVE
3. Pursuant to Section 13.3 (2) of the AMCON Practice Directions, 2013, an order directing the Plaintiff/Respondent (“the Plaintiff”) to indemnify the Defendant in the sum of N35,868,000 (Thirty Five Million Eight Hundred and Sixty Eight Thousand Naira), as damages occasioned by the January 19 Order, as specifically detailed in the schedule below.
4. Such further or other order(s) as the Court may deem just or
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appropriate.
The said motion was vigorously contested by the two sides and after taking arguments from counsel, the learned Trial Judge found no merit in the said application and consequently dismissed it.
Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed with the leave of Court on the 5th July, 2018 containing three grounds.
At the hearing of the appeal, Mr. Oshodi adopted the Amended Appellant’s brief filed on the 12th September, 2019 and the Amended Appellant’s Reply brief filed on the 29th April, 2020, both processes having been deemed properly filed and served on the 30th April, 2020, as the arguments of the Appellant in furtherance of its appeal.
Although served with the hearing notice, the Respondent’s counsel could not appear in person upon which the amended Respondent’s brief filed on the 12th November, 2019, settled by Mr. C.C. Okoye and equally deemed properly filed and served on the 30th April, 2020 was deemed adopted as the arguments of the Respondent in contesting this appeal pursuant to Order 19, Rule 9 (4) of the Rules of this Courts.
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The Appellant distilled three issues for determination from each of the grounds of appeal as follows:
(i) Whether the lower Court should have dismissed Suit No. FHC/L/CS/50/2018 (the Second Suit) for being an abuse of Court process having been filed during the pendency of Suit No. FHC/L/CS/1122/2012 – Asset Management Corporation of Nigeria v. Aquitane Oil & Gas Ltd & Anor. (Distilled from Ground One (1).
(ii) Whether the Orders the lower Court granted ex-parte to the Respondent ought not to have been discharged, given that the Respondent falsely misrepresented facts and/or suppressed material facts in seeking the orders. (Distilled from Ground Two (2).
(iii) Is the Appellant entitled to be indemnified for losses it suffered on account of the January 18 Order. (Distilled from Ground Three (3).
The Respondent on the other hand distilled a lone issue for determination thus:
Whether Suit No: FHC/L/CS/50/2018 constitutes an abuse of Court process.
The issues distilled by the Appellant are more encompassing and I shall adopt them accordingly. In doing so however, I shall take all the arguments together.
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For the Appellant, Mr. Oshodi expounded the principles of law regarding abuse of Court’s process and submitted that the parties, issues and reliefs in Suit No. FHC/L/CS/1122/2012 were substantially the same with those in Suit No. FHC/L/CS/50/2018. He referred to MINISTER OF WORKS VS TOMAS NIGERIA LIMITED (2002) 2 NWLR (PT 752) 740, OYIO LTD VS PAFABA ENTERPRISES LTD (1999) 2 NWLR (PT 591) 449, OSHOKO VS AKINRINADE (2016) LPELR – 41948 (CA), AMOBI VS NZEGWU (2005) 12 NWLR (PT 938) 120 and SAVAGE VS UWECHIA (1972) 1 ALL NLR (PT 1) 251.
He urged the Court to hold that the later action, Suit No. FHC/L/CS/50/2018 amounted to an abuse of the Courts process, and accordingly dismiss it. He referred to OGBONMWAN VS AGHIMIEN (2016) LPELR-40806(CA).
Mr. Oshodi further submitted that the Respondent willfully misrepresented and suppressed material facts as regards the existence of the earlier Suit No. FHC/L/CS/1122/2012 and the state of the Appellant’s indebtedness, in obtaining the ex parte order in issue, which constituted sufficient basis for the trial Court to have discharged the said order. He referred to the English High Court decision in ROGACHEV VS GORYAINOV (2019) EWHC
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1529(QB) and GALAHER LIMITED VS BRITISH AMERICAN TOBACCO (NIGERIAN) LIMITED & ORS (2014) LPELR-24333(CA).
Finally, the learned counsel urged the Court to indemnify the Appellant for the loss and damages suffered in consequence of the said ex parte orders.
For the Respondent, Mr. Okoye equally outlined the relevant legal principles relating to abuse of Court processes and argued that the issues, rights and reliefs in the two suits in issue were different. He submitted that it was not possible for the contentions in the later Suit No. FHC/L/CS/50/2018, which were not in existence at the time of the filing of the earlier Suit No. FHC/L/CS/1122/2012, to have been accommodated in the said earlier suit. He submitted that abuse cannot arise in the disclosed circumstances. He referred to UMEH VS IWU (2007) 6 NWLR (PT 1030) 416 at 427,OGOEJEOFO v. OGOEJEOFO(2006) 3 NWLR (PT 966) 205, VAB PETROLEUM INC. VS MOMAH (2013) 14 NWLR (PT 1374) 284 at 325, YAKUBU VS A.S LTD (2010) 2 NWLR (PT 1177) 167 at 179 and AGWASIM VS OJICHIE (2004) 4 SC (PT 11) 60.
The learned counsel further argued that declaring Suit no. FHC/L/CS/50/2018 an abuse of Court’s
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process would imply that the reliefs in the said suit would be unrealizable and the Respondent would be left without an avenue to protect its legal rights. He referred to C.O.M. INC. VS COBHAM (2006) 15 NWLR (PT 1002) 283 at 306 and DAPIANLONG VS DARIYE(2007) 8 NWLR (PT 1036) 239.
He submitted that the Respondent did not suppress any material facts in obtaining the ex parte orders in issue and that in totality there was no basis for holding that Suit No. FHC/L/CS/50/2018 constituted a abuse of the Court’s process.
In his Reply arguments, Mr. Oshodi submitted the Respondents failed to respond to his issues 2 and 3 and would be deemed to have conceded those two issues. He referred to F.B.N. PLC VS AKINYOSOYE (2005) 5 NWLR (PT 918) 340 at 380 and INTERNATIONAL TOBACCO COMPANY PLC VS BRITISH AMERICAN TOBACCO NIG. LTD & ANOR (2013) LPELR-20494 (CA).
With regards to the arguments of the Respondent on the first issue, the learned counsel reviewed the applicable legal principles and submitted that the basis of the contention of the Appellant was as regards the counter-claim of the Appellant in Suit No. FHC/L/CS/1122/2012 which would be
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over-reached by the Respondent’s subsequent Suit No. FHC/L/CS/50/2018.
He then reviewed the various judicial authorities relied upon by his learned friend for the Respondent and urged the Court to strike out Suit No. FHC/L/CS/50/2018 for being an abuse of the process of Court. He referred toMAINA VS E.F.C.C. (2020) 2 NWLR (PT 1708) 230.
The concept of abuse of the process of Court has attracted some fair amount of judicial attention as to illuminate any lingering opacity. According to KARIBI-WHYTE, JSC:
It is the law that 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 with respect to the same subject matter. The Court has a duty in such a situation to interfere to stop an abuse of its process. See Okorodudu v. Okoromadu (1977) 3 S.C. 21. This is not such a case. The motion to set aside the Judgment, and the appeal to the Supreme Court, now withdrawn, but in respect of the same subject matter were not instituted by the same parties. – See Oyegbola v. Esso West Africa Inc . (1966) 1 All N.L.R.170. See OKAFOR & ORS VS. AG & COMMISSIONER FOR JUSTICE & ORS
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(1991) LPELR-2414(SC) at 34.
OGUNDARE, JSC further expounded the position of the law on the subject thus:
In Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 this Court dealt exhaustively with what constitutes abuse of process of Court. In his lead judgment in the case, Karibi-Whyte, JSC observed at pages 188-189:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3SC 21;
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Oyegbola v. Esso West African Inc (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se.
The abuse consists in the intention, purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (pt. 119) 6.
Similarly so held was where two similar processes were used in respect of the exercise of the same right. Namely a cross-appeal, and a respondent’s notice, – See Anyaduba v. N.R.T. Co. Ltd. (1990) 1 NWLR (Pt.127) 397; Jadesimi v. Okotie-Eboh (No.2) (1986) 1 NWLR (Pt.16) 264. This Court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to Court for leave to raise
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issues of fact already decided by Courts below, – See Alade v. Alemuloke (1988) 1 NWLR (Pt.69) 207. Hence as I have observed, it is not the exercise of the right per se, but its improper and irregular exercise which constitutes an abuse. Essentially, it is the inconvenience, inequities involved in the aims and purposes of the application which constitute the abuse. Otherwise, where there is a right to bring an action the state of mind of the person exercising the right cannot affect the validity or propriety of its exercise. The proposition has been aptly expressed by Lord Halsbury in Mayor & City of Bradford v. Pickles (1895) AC 587 at p.594 when he said,
‘If it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act however good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before your Lordships seem to me absolutely irrelevant.’
The above words apply mutatis mutandis to the facts of the case before us. The motive of the defendant in bringing the application is irrelevant. He is entitled to exercise his constitutional right to appeal.” See
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CBN V. AHMED & ORS (2001) LPELR-837(SC) at 62-64.
Furthermore, AUGIE, JSC succinctly captured the essence of what constitutes abuse of Court process thus:
What is an abuse of Court process first off, it is settled that the employment of judicial process is only regarded as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent – see A.G., Anambra State V. UBA (2005) 15 NWLR (Pt. 974) 44 SC, Arubo V. Aiyeleru (supra) and Saraki V. Kotoye (supra) where this Court per Karibi-Whyte, JSC. aptly observed that the common denominator with the concept of abuse of Court process “is the improper use of the judicial process in litigation to interfere with the due administration of justice”.
The bottom line is that an abuse of Court process is where a litigant chooses to use the Legal process improperly to annoy and embarrass another through the filing of multiple actions in one or several Courts against the same Parties and on the same Issues – see Umeh & Anor V. Iwu & Ors (2008) 8 NWLR (Pt. 1089) 225 SC.
In that case, Umeh & Anor V. Iwu & Ors (supra), this Court per Chukwuma-Eneh
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JSC, painted a clear picture of what it means –
Abuse of Court process simply, in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This matter of using Court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice – – Therefore to sustain a charge of abuse of process there must co-exist inter alia – (i) A multiplicity of suits (ii) between the same opponents (iii) on the same subject matter and (iv) on the same issues. All these pre-conditions are mutually inclusive as they are conjunctive. See NWOSU VS. PDP & ORS (2018) LPELR-44386(SC) at 22-23.
The contention of the Appellant here as in the trial Court, was that the existence of the Counter-claim filed to the Respondent’s Suit No. FHC/L/CS/1122/2012 precludes the Respondent from maintaining their Suit No. FHC/L/CS/50/2018.
In concluding the consideration of the Appellant’s application, the learned Trial Judge stated thus:
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I hold firmly that the subject matter in this suit and Suit No. FHC/L/CS/1122/2012 are distinct, the rights and reliefs sought are also different and clearly distinguishable so that the existence of the suit does not interfere with the rights and reliefs sought in the counter-claim.
Therefore, the Counter-claim is immaterial to the instant suit, the ex parte order of this Court remains.
The reliefs sought by the Appellant in the said Counter-claim to Suit No. FHC/L/CS/1122/2012,are as follows:
(a) An order of perpetual injunction restraining the Defendant to the Counter-claim, its agents, privies, successors-in-title or any person howsoever described from clogging the equity of redemption or otherwise from exercising or purporting to exercise any right or taking any step to defeat the said equity of redemption in respect of No. 5/7, Kingsway Road, Ikoyi, with Lagos State Certificate Title No. 3352.
(b) An order directing the Defendant to the Counter- claim to render accounts arising from the valuation of the 1st Counter-Claimant’s assets; and to pay to the 1st Counter-Claimant all and any sums attributable to surplus earnings from the acquisition, sale,
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lease or transfer of any of the 1st Counter-Claimant’s assets or such other sum as may found to be due therefrom.
FURTHER ON IN THE ALTERNATIVE TO (B) ABOVE
(c) N6,000,000,000.00 (Six Billion Naira) or any sums found to be due as proceeds from the acquisition, by the Defendant to the Counter-Claim, of the Defendant’s Tank Farm located at Ibru Complex, Westminster Jetty, along Apapa-Oshodi, Ibafon, Apapa, Lagos;
(d) N585,000,000.00 (Five Hundred and Eighty-Five Million Naira) or any sums found to be due as proceeds from the acquisition, by the Defendant to the Counter-Claim, of the 1st Defendant’s property situate at Plot 6 Esther Adeleke Street, Lekki Phase 1, Lagos; and
(e) N180,000,000.00 (One Hundred and Eighty Million Naira) or any sums found to be due as proceeds from the acquisition, by Defendant to the Counter-claim, or of the 1st Defendant’s property situate at No. 14. Adeleke Adedoyin Street, off Kofo Abayomi Street, Victoria Island, Lagos.
(f) A perpetual injunction restraining the Defendant to the Counter-claim, its agents, privies or successors-in-title, or any person howsoever described from
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selling or offering for sale, the Tank Farm located at Ibru Complex, Westminster Jetty, along Apapa-Oshodi, Ibafon, Apapa.
(g) Damages in the sum of N5,000,000,000.00 (Five Billion Naira)
(h) Costs of instituting this action.
The gravamen of the Appellant’s case in the said counter-claim can be gleaned from paragraphs 5-8 thereof. The said paragraphs are set out in full as follows:
5. The Counter-Claimants state that sometime in 2010, AMCON acquired Aquitane’s accounts and assets from the legacy Banks in the sum of N13,674,462,194.39 (Thirteen Billion Six Hundred and Seventy-Four Million, Four Hundred and Sixty-two Thousand, One hundred and Ninety-Four Naira and Thirty-Nine Kobo).
6. Aquitane was subsequently asked to forfeit the assets listed in paragraph 9 above.
7. The Counter-Claimants state further that the Kingsway Road property was pledged as security for a loan transaction between Aquitane and Finbank Plc (now FCMB) and was subject to a restraining order granted by the High Court of Lagos State which was valid and subsisting in 2012, when AMCON acquired the said asset from Finbank Plc. (now FCMB).
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- The Counter-Claimants will contend that the assets already forfeited to AMCON are in excess of N15, 590,757,213.31 (Fifteen Billion, Five Hundred and Ninety Million, Seven Hundred and Fifty-Seven Thousand, Two Hundred and Thirteen Naira, Thirty-One Kobo) agreed between Aquitane and AMCON and that the surplus arising therefrom should be credited in favour of the Counter-Claimants.However, in Suit No. FHC/L/CS/50/2018, the reliefs sought by the Respondent are as follows:
i. An order of the Honourable Court directing the Defendant to pay to the Claimant the sum of Nine Hundred and Ninety-four Million, Five Hundred and Sixteen Thousand Six Hundred and Sixty-six Naira (N994,516,666.00) being the outstanding balance of the Tank Farm User Fees owed by the Defendant as at February, 28, 2017.
ii. An order of the Honourable Court directing the Defendant to pay to the Claimant the agreed Tank Farm User Fees at the rate of Fifty Million Naira (N50,000,000.00) only per month from March, 2017 to the date of judgment and thereafter at the same rate until possession is delivered to the Claimant.
iii. An order of the Honourable Court foreclosing the
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Defendant’s rights, interests, and title in and over the property described as Acquitane Oil and Gas Limited Terminal/Tank Farm and situate at Ibru Complex, Ibafon, Olodi Apapa, Lagos.
iv. An order of the Honourable Court recognizing AMCON’s legal rights, title and ownership over the property described as Aquitane Oil and Gas Limited Terminal/Tank Farm and situate at Ibru Complex, Ibafon, Olodi Apapa, Lagos pursuant to Legal Mortgage and the executed Offer Letter dated August 15, 2013.
v. An order of this Honourable Court directing the Defendant to pay to the Claimant the sum of Hundred Million Naira (N100,000,000.00) as general damages for breach of contract.
vi. An order of this Honourable Court directing the Defendant to pay to the Claimant legal cost in the sum of 5% of the total judgment sum and 5% of the total sum realized as interest until full liquidation of the judgment sum.
vii. An order of this Honourable Court directing the Defendant to pay to the Claimant all costs incurred in respect of this suit including the cost incurred in taking possession of and maintaining security at the property.
viii. An order of this
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Honourable Court directing the Defendant to pay interest on the total judgment sum at the rate of 10% per annum from the date of judgment until final liquidation of the debt.
The gist of the Respondent’s action in the said Suit No. FHC/L/CS/50/2018 can be found in paragraphs 3, 4, 5, 6, 7, 9, 11, 14 and 15 of the Statement of Claim therein, set out as follows:
3. The Defendant is indebted to a number of financial institutions including Afribank Plc (now Mainstreet Bank Ltd), Finbank Plc, Oceanic Bank Plc (now Ecobank Plc), Intercontinental Bank Plc (now Access Bank Plc) and Diamond Bank Plc, which debt were all transferred to the Claimant in pursuance of its statutory responsibilities.
4. That as part of the collaterals for the debts, the Defendant/Respondent created a Legal Mortgage in favour of the Claimant over its fixed asset known and described as Aquitane Oil and Gas Limited/Tank Farm and situate at Ibru Complex, along Westminster Road, Ibafon, along Apapa-Oshodi Expressway, Lagos. The duly executed and registered Legal Mortgage dated 18th January, 2008 is hereby pleaded and will be relied upon at the trial.
5. In its bid to
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recover the indebtedness from the Defendant, the Defendant opted for an amicable settlement sequel to which the Claimant sent an offer letter to the Defendant.
6. The offer letter was duly accepted and executed by the Defendant. The executed offer letter dated August 15, 2013 is hereby pleaded and will be relied upon at the trial.
7. By virtue of the executed offer letter, the ownership of the Tank Farm was transferred by the Defendant to the Claimant amongst other things.
9. Pursuant to the accepted/executed offer letter and transfer of the Tank Farm, the parties entered into a lease agreement wherein the Defendant remained in possession of the Tank Farm as a lessee in consideration of payment of lease rentals/tank farm user fees.
11. The tank farm user fees for the use of the Tank Farm for the term of the Agreement was agreed at the sum of N650, 000,000.00 (Six Hundred and Fifty Million Naira) only per annum and payable in 4 equal installments of N162,500,000.00 (One Hundred and Sixty Two Million Five Hundred Thousand Naira) only per quarter.
14. Following the Defendant’s request, the tank farm user fee was subsequently
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reviewed downward to N600,000,000.00 (Six Hundred Million Naira) only per annum and payable in 12 equal installments of N50,000,000.00 (Fifty Million Naira) only per month.
15. Despite of the downward review of the tank farm user fee, the Defendant still failed to pay the tank farm user fees and has remained in arrears of the monthly user fee payment since June, 2014.
As earlier shown in the legal principles earlier outlined, to successfully establish that a suit constitutes an abuse of the judicial process, it is not sufficient that parties are identical, the subject-matter and issues in contention in the suits, must be identical. There must be an improper use of the judicial process to irritate and embarrass the opponent.
An examination of the issues in contention and reliefs in the two suits here do not support the contentions of the Appellant. The Appellant’s counsel tacitly conceded that the claims of the Respondent in the earlier Suit No. FHC/L/CS/1122/2012 had nothing to do with the later Suit No. FHC/L/CS/50/2018, but rather anchored his objection on the Counter-claim filed by the Appellant. This has substantially drained the life
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elixir off his arguments. In the Counter-claim, the Appellant was trying to resist its alleged indebtedness while the fulcrum of the later Suit No. FHC/L/CS/50/2018 was derived from a lease contracted subsequent to a settlement agreement between the parties. Agreeing with the Appellant’s contentions here would be tantamount to depriving the Respondent of the rights derivable from the leasehold agreement contracted between the parties. That would be unjust.
There is therefore no justifiable basis to hold that that the later action, Suit No. FHC/L/CS/50/2018 was filed to irritate or embarrass the Appellant. I cannot in the entire circumstances agree with the Appellant that the said suit constitutes an abuse of the judicial process.
The Appellant further contended that the Respondent suppressed material facts in obtaining the ex parte orders in issue and that the Appellant ought to be indemnified for the loss and injury arising from the said ex parte orders. The facts constituting the allegations of suppression of material facts are the same facts canvassed in the Appellant’s Counter- claim in Suit No. FHC/L/CS/1122/2012 which have been
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found to be unrelated to the Respondent’s Suit No. FHC/L/CS/50/2018.
The arguments canvassed by the Appellants are accordingly academic and non sequiter in the circumstances of my earlier conclusion that Suit No. FHC/L/CS/50/2018 did not constitute an abuse of the judicial process.
I therefore resolve all the three issues against the Appellant and in favour of the Respondent.
I find no merit in this appeal and I accordingly dismiss it.
Parties shall bear their respective costs.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead judgment written by my learned brother, Joseph Olubunmi Kayode Oyewole, JCA, in this appeal, I agree with him that the Appellant has failed to convincingly demonstrate that the Respondent’s later Suit No: FHC/L/CS/50/2018 constitutes a real abuse of the Lower Court process on the facts, issues and reliefs in relation to the earlier suit between the parties. Very clearly, the subject matter, issues and the reliefs sought in the two (2) suits, are different and distinct from each other even though is not applicable and does not apply to the later suit on the ground sought that the parties in the two
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(2) suits are the same. Ogoejeofo V. Ogoejeofo(2006) 1 SC (Pt. 1) 157, (2006) 3 NWLR (Pt. 966) 205, Umeh V. Iwu (2008) 2-3 SC (Pt. 1) 135, (2008) 8 NWLR (Pt. 6089) 225, Re-Benkay Nigeria Limited V. Cadbury Nigeria Limited (2012) 9 NWLR (Pt. 1305) 595, Oguebego V. PDP (2016) 4 NWLR (Pt. 1503) 448.
For the reasons set out in the lead judgment, I join in dismissing the appeal for being bereft of merit.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to read in draft the lead judgment delivered by my learned brother JOSEPH OLUBUNMI KAYODE OYEWOLE JCA. I agree entirely with the reasoning and conclusion reached therein.
In consequence, I equally find this Appeal unmeritorious, and it is hereby dismissed.
I make no order as to costs.
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Appearances:
Mr. R. A. Oshodi with him, Mr. A. Talabi For Appellant(s)
No appearance for the Respondent For Respondent(s)