AZEEZ AYINLA & SONS (NIG) LTD & ANOR v. AMCON (2020)

AZEEZ AYINLA & SONS (NIG) LTD & ANOR v. AMCON

(2020)LCN/14221(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, May 14, 2020

CA/IB/298/20

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

(1) AZEEZ AYINLA & SONS (NIG) LTD (2) MR. AZEEZ AYINLA APPELANT(S)

And

ASSET MANAGEMENT CORPORATION OF NIGERIA RESPONDENT(S)

RATIO

CIRCUMSTANCES THAT WOULD AMOUNT TO AN ABUSE OF COURT PROCESS

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 issues in the other action or actions.
It cannot amount to abuse of Court process if what is done was that the Plaintiff filed another action in order to decide to do this instead of seeking an amendment of the earlier suit. I am of the view that there is no abuse Court process in the present instance.” PER BADA, J.C.A.

THE SUBSTANTIVE PRAYERS REQUIRED FOR AN APPLICATION FOR EXTENSION OF TIME

I wish to pause here to emphasis that a person who wishes to seek leave on any grounds to appeal after the expiration of the statutory periods to appeal … requires three substantive prayers namely:
1) Extension of time to seek leave to appeal;
2) Leave to appeal and
3) Extension of time within which to appeal.
That any of such application must contain these prayers is not a matter of mere cosmetic importance which could be waived off with levity. Rather it is a matter which goes to the serious issue of jurisdiction of Court. The periods within which a party can appeal in our Courts are prescription of statutes; and leave to appeal where necessary is a requirement of our Constitution.”PER BADA, J.C.A.

WHETHER OR NOT ANY ACT PERFORMED THAT CONTRAVENES THE PROCEDURE PROVIDED FOR BY LAW WILL BE A NULLITY
The law is trite that when the law provides for a procedure to do an act that procedure must be followed for the subsequent act to be valid. Any act performed in contravention of the procedure provided by law is a nullity. It is of no effect because in the eyes of the law such act has not been performed. See SAUDE VS. ABDULLAHI (1989) 4 NWLR (pt. 116) 387; ADHEKEGBA VS. MINISTER OF DEFENCE (2013) 17 NWLR (pt.1382) 126: MOBIL PRODUCING (NIG) UNLIMITED VS. JOHNSON (2018) 14 NWLR (pt. 1639) 329; NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT VS. KLIFCO (NIG) LTD. (2010) 13 NWLR (pt. 1211) 307.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> In the application of the appellants for extension of time to appeal granted on the 19th of November 2018 by this Court, they did not seek all the trinity prayers. They failed to apply for extension of time to seek leave to appeal. The procedure laid down by law was not followed. The Notice of Appeal is thus incompetent. Consequently, this Court lacks jurisdiction to entertain this appeal. PER OJO, J.C.A.

WHETHER OR NOT LEAVE OF COURT IS REQUIRED FOR AN APPLICATION FOR AN EXTENSION OF TIME TO FILE AN APPEAL

The law is settled that where leave of Court is required to file an appeal and the time within which to file such appeal has expired, an Appellant may apply for extension of time to seek leave to appeal. The application for leave must contain what is known as trinity prayers. The trinity prayers are:
1) Extension of time to seek leave to appeal.
2) Leave to Appeal and
3) Extension of time to appeal.
All the three prayers must co-exist. Where any of the prayers is missing in application where it is required, such omission is a fundamental defect which ousts the jurisdiction of the appellate Court. See ANI VS. OUT (2017) 12 NWLR (pt. 1578) 30: ODOFIN VS. AGU (1992) 3 NWLR (pt. 229) 350: BRAITHWAITE VS. DALHATU (2016) 13 NWLR (pt. 1528) 32. In OKOLIE VS. ANIEKE (2019) 17 NWLR (pt. 1700) 90 at 108 — 109 paras G-B. PER OJO, J.C.A.

JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the ruling of Federal High Court Ibadan Division in Suit NO: FHC/IB/CS/13/2018 BETWEEN ASSET MANAGEMENT CORPORATION OF NIGERIA AND (1) AZEEZ AYINLA & SONS NIG LTD (2) AZEEZ AYINLA delivered on the 28th day of May, 2018, wherein the preliminary objection of the Appellants which prayed the Court to dismiss the suit on the ground that same constitute an abuse of Court process because of the pendency of Suit No: I/280/2008 at the Oyo State High Court was dismissed.

Briefly the facts of this case are that the Appellants filed an application at the Federal High Court for dismissal of the entire suit based on the grounds that the parties in the suit are the same with parties in Suit No: I/280/2008 instituted by the Appellants against the Respondent, and which by the Appellants constitute an abuse of Court process. On the other hand, the Respondent filed its counter affidavit in which it was shown that the parties are not the same. The Respondent was able to show that suit No: I/280/08 had been discontinued therefore no two suits existed at the same time.

The lower Court in its ruling held that the parties in both suits FHC/IB/CS/13/2018 AND I/280/08 are not the same.

The Appellants who is dissatisfied with the ruling of the lower Court filed a notice of appeal on 13/6/2018.
The learned Counsel for the Appellants formulated three issues for the determination of the appeal. The said issues are set out as follows:-
(1) Whether the Respondent is not a privy in law of Oceanic Bank Int’l PLC/ECO Bank PLC from whom the Respondent derived title and right of action when it acquired from the bank the eligible bank debt which is the subject matter of this suit. (Distilled from Ground 1).
(2) Whether from the facts and circumstances of this case the learned trial Judge of the Federal High Court was right in dismissing the Notice of Preliminary Objection of the Appellants on the 28th day of May 2018 (Distilled from grounds 2, 3, 5, 6 and 7).
(3) Whether the Federal High Court has jurisdiction to entertain all matters instituted by the Respondent for the recovery of debts owed it or an eligible financial institution and other matters arising from the provisions of the AMCON Act 2015 (as amended) abuse

of the Court’s process not withstanding (Distilled form ground 4).

At the hearing of this appeal on 26/2/2020 the learned Counsel for the Appellants stated that the appeal is against the ruling of the Federal High Court, Ibadan delivered on 28/5/2018. The notice of appeal was filed on 13/6/18 and same was regularized on 19/11/2018. The Appellants’ brief was filed on 27/7/2018 and deemed as properly filed on 19/11/2018.

The Record of Appeal was transmitted to this Court on 3/7/2018. The Appellants’ reply brief was filed on 7/12/2018 and deemed as properly filed on 23/5/2019.

The learned Counsel for the Appellants adopted and relied on both the Appellants’ brief of argument as well as Appellants’ reply brief as his argument in urging that this appeal be allowed.

The learned Counsel for the Respondent referred to the notice of preliminary objection which was argued in the Amended Respondent’s brief of argument filed on 18/3/2019 which was deemed as properly filed on 23/5/2019. He adopted and relied on the said amended Respondent’s brief as his argument in urging that the appeal be dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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NOTICE OF PRELIMINARY OBJECTION
The learned Counsel for the Respondent filed a notice of preliminary objection on 4/12/2018. The Preliminary Objection was argued in the amended Respondent’s brief of argument.
The Appellants’ notice of appeal was filed on 13/6/2018.

The learned Counsel for the Respondent submitted that the notice of appeal was filed outside the 14days required for filing of notice of appeal. He relied on Section 24(2) of the Court of Appeal Act. He also submitted that the Appellants failed to obtain leave to appeal. He then submitted that this appeal is incompetent.

Learned Counsel for the respondent also referred to Appellants’ application dated 19th November, 2018 which was granted on the same date for leave to appeal, he submitted that the application is incompetent.
He relied on the following cases:
– BRATHWAITE & OTHERS VS DALHATU (2016) LPELR – 40301 (SC)
– AMUDIPE VS ARIJODI (1978)9-10 SC PAGE 27.
– APGA VS ANYANWU & OTHERS (2014) LPELR – 22182 (SC).
– ONI VS CADBURY NIG PLC (2016) LPELR – 26061 SC.

Learned Counsel for the Respondent urged

that this appeal be struck out for non-compliance with Section 24 of the Court of Appeal Act.
He relied on the following cases:-
– JAMARI & OTHERS VS YAGA (2012) LPELR – 15188 (CA).
– FASUYI & OTHERS VS PDP & OTHERS 2017 LPELR – 43462 (SC).

He finally submitted that since the learned Counsel for the Appellants did not apply for leave to appeal therefore this appeal ought to be struck out.

The learned Counsel for the Appellants in his Appellants’ reply brief submitted in response to the preliminary objection that Section 241 (1) of the Constitution of the Federal Republic of Nigeria (as amended) confers a right of appeal on a party. He contended that the right is exercised in accordance with the law. He went further that by virtue of Section 241 (1) (b) of the said Constitution, the right of appeal is exercisable without seeking leave by way of the Trinity Prayers if the ground of appeal involves questions of law. He submitted that leave to appeal is required only when the appeal is on grounds other than law. He argued that the grounds of appeal in this appeal are all grounds of law.

He relied on the following cases:-
– MAIGORO VS GARBA (1999) 10 NWLR PART 624 PAGE 555 TO 573.
– ADESINA VS AROWOLO (2005) ALL FWLR PART 254 PAGE 1123.
– CHIEF OF AIR STAFF VS IYEN (2005) ALL FWLR PART 252 PAGE 404 AT 541-542.
– AKINYEMI VS ODU’A INVESTMENT CO. LTD (2012) ALL FWLR PART 620 PAGE 1215.
– NZEI VS UNIVERSITY OF NIGERIA (2017) ALL FWLR PART 906 PAGE 1471 TO 1519.

Learned Counsel for the Appellants finally urged that the Preliminary Objection be overruled.

The Notice of Appeal filed on behalf of the Appellants on 13/6/2018 is set out as follows:-
NOTICE OF APPEAL:
“TAKE NOTICE that the Appellants being dissatisfied with the ruling of Honourable Justice J. O. Abdulmalik delivered on the 28th day of May, 2018 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4 below.
AND the Appellants further state that the names and addresses of the parties directly affected by the appeal are set out in paragraph 5.
2. PART OF THE DECISION OF THE LOWER COURT BEING COMPLAINED OF
The whole decision wherein the

Honourable Court overruled the objection of the Appellants.
3. GROUNDS OF APPEAL
GROUND ONE
The learned Judge erred in law in refusing the application of the ground that “obviously, the parties before this Court are not the same as Suit No. I/280/2008 pending before the High Court of Justice, Oyo State” and thereby came to a wrong conclusion.
Particulars:
1. The cause of action was bought over by AMCON from Ecobank Plc.
2. The right of action originally vests in Oceanic International Bank Plc which transferred same to Ecobank Plc when it bought over Oceanic Bank and then the Claimant, as otherwise the suit in the Federal High Court is fundamentally inappropriate as there is no dispute inter parties.
3. The right of action was assigned to AMCON Plc for valuable consideration.
4. The decision in suit No. I/280/2008 AZEEZ AYINLA & SONS LTD AND ANOR V. OCEANIC INTERNATIONAL BANK PLC will also affect the Claimant.
5. The Claimant is in privity with Ecobank Plc.
6. The Claimant only bought over the debt which is the subject matter of this suit from Ecobank Plc (which bough over Oceanic International

Bank Plc) pursuant to Section 53 of the AMCON Act 2015.

GROUND TWO
The learned Judge erred in law in supposing that in all and every case and circumstances of abuse of process, the parties must be the same having regard to the fact that the objection was virtually overruled on the basis that the parties are not the same.
Particulars:
1. The concept of abuse of process involves circumstances and situations of infinite variety and confined only to the issue of the same parties.
2. Suit No FHC/IB/CS/13/2018 having been initiated during the dependency of suit No I/280/2008 amounts to improper use of the judicial process to the annoyance, irritation and harassment of the Defendants and an interference with the effective administration of justice.
3. Two similar processes are employed in respect of exercise of the same right in suit no. I/280/2008 and suit No. FHC/IB/CS/13/2018.
GROUND THREE
The Honourable Court breached the Appellants’ right to fair hearing when it failed to adequately consider all the issues raised and submitted to the Court in support of the objection and thereby occasioned a miscarriage of

justice.
Particulars:
1. The Appellants made submissions that having regard to the provisions of Section 35(6) of the AMCON (Amendment) Act, 2015, the Claimant could also be accommodated in the suit in the High Court of Justice, Oyo State which the Claimant failed to do.
2. The Claimant is bound equally with Ecobank Plc, the eligible financial Institution from which it bought the debt.
3. The Honourable Court did not duly and properly consider the submissions before proceeding to overrule the objection.
4. The Honourable Court ought to duly and properly consider the Appellants’ submissions before reaching a decision.
5. The failure of the Honourable Court to duly and properly consider all issues and submissions before it in reaching a decision breached the Appellants’ right to fair hearing.
GROUND FOUR
The Honourable Court erred in law when it held at page 9 of the ruling as follows:
“In conjunction to the above findings, Part VI of the AMCON Act, titled debt Recovery Procedure precisely S. 53 provides that:
“The Chief Judge of the Federal High Court may designate any judge of the

Federal High Court to hear matters for the recovery of debts owed to the corporation or an eligible financial institution and other matters arising from the provision of the Act to the exclusion of any other matter for such as may be determined by the Chief Judge.”
Pursuant to the powers given to the Chief Judge of the Federal High Court under S.254 of the Constitution of Federal Republic of Nigeria 1999 (as amended); S. 44 of the Federal High Court (Act) and Order 57 Rule 3 of the Federal High Court (Civil Procedure) Rule 2009, the Chief Judge of the Federal High Court issued the AMCON Practices Direction of 2013.
It flows from the above, that this Court has jurisdiction to entertain matters, instituted by the Claimant/Respondent” and thereby came to a wrong conclusion.
Particulars:
1. The learned Judge wrong relied on and applied the provisions of Section 53 of the AMCON Act.
2. S. 53 of the AMCON 2015 only confers a right of action on the Claimant in appropriate cases.
3. The Appellants did not challenge the Claimant’s statutory power and/or power to recover debts owed the Corporation or owed to eligible

financial institutions in their application.
4. The learned Judge totally misapprehended and failed to correctly appreciate the objection of the Appellants and the grounds upon which same was predicated.
5. The Court did not understand or appreciate the principles of the concept of abuse of process.
GROUND FIVE
Honourable Court erred in law when his lordship overruled the objection of the Appellants which was not predicated on any material fact placed before the Court by the Claimant to counter the averments of the Appellants thereby occasioned a miscarriage of justice.
Particulars:
1. The averments in the counter affidavit of the Claimant did not counter any the averments of the Appellants.
2. The Honourable Court only exercise its discretion based on material facts presented before the Court and same must be exercised judicially and judiciously.
3. Exercise of Court’s discretion is legal in nature and is based only on uncontroverted evidence.
4. The arguments against the objection were that of the Honourable Court in the absence of the written address of the Claimant thereby.
5. Facts in an affidavit

not countered by the counter affidavit are deemed admitted and true.
GROUND SIX
The learned Judge erred in law by holding as follows:
“The suit of the Claimant before this Court is definitely not all four with the suit instituted at the High Court of Justice, Oyo State. To submit that the parties and subject matter are the same will amount to an attempt by learned Counsel for the Defendant/Applicant to point Court in the wrong direction”.
Particulars:
1. The Court failed to consider the subject matter of the suit instituted at the High Court of Justice, Oyo State and the present suit before concluding that the subject matter is not the same.
2. The erroneous holding of the Court has occasioned a grave miscarriage of justice to the Appellants.
3. The subject matter in suit No. I/280/2008 is the same with suit no. FHC/I/280/2008 in that suit No. FHC/I.280/2008 is also trying to litigate the issue of debt owed to Oceanic Bank/Ecobank by the 1st Defendant and guaranteed by the 2nd Defendant.
4. Suit No. I/280/2008 and suit No. FHC/I/280/2008 are aimed at achieving the same relief as contained in the counterclaim

in suit No. I/280/2008 which was pending before the filing of suit No. FHC/I/280/2008.
GROUND SEVEN
The learned Judge erred in law by stating the suit of the claimant before the Federal High Court is not on all fours with the suit instituted at the High Court of Justice of Oyo State:
Particulars:
1. The subject matter in suit No. I/280/2008 is the same with suit No. FHC/I/280/2008 in that suit No. FHC/I/280/2008 is also trying to litigate the issue of debt owed to Oceanic Bank/Ecobank by the 1st Defendant and guaranteed by the 2nd Defendant.
2. Suit No. I/280/2008 and suit No. FHC/I/280/2008 are aimed at achieving the same relief as contained in the counterclaim in suit No. I/280/2008 which was pending before the filing of suit No. FHC/I/280/2008.
Other grounds of Appeal will be filed upon receipt of the records.”

The Notice of Appeal set out above was filed on 13/6/2018 against the Ruling of the Federal High Court delivered on the 28th day of May, 2018.
This is clearly outside the 14 days required for filing a notice of appeal under Section 24 (2) of the Court of Appeal Act. It is also clear that the Appellants

failed to obtain leave of the lower Court within the time limit provided and after the time limit has elapsed they did not ask for leave to appeal against the Ruling of the lower Court.
There is no doubt in the fact that the right of appeal from a decision of the Federal high Court is provided under Section 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)but the manner of exercise of that right is regulated by Section 24 of the Court of Appeal Act.
In this appeal under consideration, the learned Counsel for the Appellants contended that all the seven grounds of appeal are grounds of law alone, but Counsel for the Respondent held a contrary view.
In determining whether a ground of appeal is a ground of law alone or it is of mixed law and facts or of facts only is sometimes an uphill task, nevertheless, in determining whether a ground of appeal raises a question of law alone or of fact or of mixed law and facts, the Court is required to examine thoroughly the ground of appeal together with its particulars, in order to see whether the ground reveals a misunderstanding of the law by the lower Court or a

misapplication of the law to the facts already proved or admitted, in which case it would be a ground of law alone. Nevertheless, where the ground is such that would require questioning the evaluation of facts by the lower Court before the application of the law, that would amount to question of mixed law and fact. If the ground of appeal complains that the Judgment is against the weight of evidence it is a ground of fact. See the following cases:-
– OGBECHIE VS ONOCHIE (1986) 2 NWLR PART ..PAGE 484
– COOPERATIVE AND COMMERCE BANK PLC & ANOTHER VS JANAH DAN OKORO EKPERI (2007) 3 NWLR PART 1022 PAGE 493.
– CHROME AIR SERVICES LTD VS FIDELITY BANK (2017) 12 SC PART III PAGE 57.
– FASUYI VS PDP (2018) 7 NWLR PART 1619 PAGE 426.
A perusal of the Notice of appeal of the Appellants set out earlier in this Judgment reveals that grounds of appeal under consideration are grounds of mixed law and facts. And no leave of either the lower Court or Court of Appeal was sought and obtained before filing the notice of appeal.
See – GLOBAL WEST VESSEL SPECIALIST (NIG) LTD VS NIGERIA NLG LTD & ANOTHER (2017) 8 NWLR PART 1568 PAGE 381.

I am not unaware that the Appellants brought an application for extension of time to appeal which was granted on 19/11/2018. But the application is not helpful to the Appellants because in my view it is the settled position of the law that where an Appellant in an interlocutory appeal files an application for leave to appeal out of time he must come by way of trinity prayers which are:-
(i) Extension of time to seek leave to appeal.
(ii) Leave to appeal.
(iii) Extension of time to appeal.
See – BRAITHWAITE & OTHERS VS DALHATU (2016) 13 NWLR PART 1527 PAGE 32.
Where the above procedure is not complied with as in this appeal, it is fatal for the appeal. It renders the appeal incompetent.
It is settled law that where an appeal requires leave of Court and time within which to lodge the appeal has also expired as in the instant appeal, the intending Appellants must in seeking leave to appeal also pray for extension of time within which to appeal in addition to seeking extension of time to apply for leave and leave to appeal as stated earlier in this Judgment.
See the following cases:-

-PREMIER BREWIES LTD VS ANERE CONST. CO. LTD (1987) 3 NWLR PART 62 PAGE 688
– ODOFIN VS AGU (1992) 3 NWLR PART 229 PAGE 350.
– FUNDUK ENGINEERING LTD VS JAMES MCATHUR & OTHERS – IN RE MADAKI (1996) 7 NWLR PART 459 PAGE 153.
– USORO VS OBOT (2013) LPELR – 21126 (CA)
In this appeal under consideration, the application granted for the Appellants on 19/11/2018 did not come by way of Trinity Prayers to seek leave, instead the application was only for leave for extension of time within which to appeal and extension of time to file notice of appeal. This in my view is not suffice for the Trinity Prayers. And parties cannot by consent or acquiescence confer jurisdiction on this Court.
See:- ONI VS CADBURY (NIG) PLC (2016) 9 NWLR PART 1516 PAGE 80.
Consequent upon the foregoing, I am of the view that the application granted on 19/11/2018 is incompetent. This appeal is incompetent too and it is hereby struck out.
See:- FASUYI & OTHERS VS PDP AND OTHERS (Supra)

In view of the fact that this Court is an intermediate Court, it would be necessary to consider the appeal on its merit.

The issues formulated for the determination

of this appeal on behalf of the Appellants which was adopted by the learned Counsel for the Respondent is hereby reproduced as follows:-
ISSUES FOR DETERMINATION OF THE APPEAL (TAKEN TOGETHER)
(1) Whether the Respondent is not a privy in law of Oceanic Bank Int’l PLC/ECO Bank PLC from whom the Respondent derived title and right of action when it acquired from the bank the eligible bank debt which is the subject matter of this suit. (Distilled from Ground 1).
(2) Whether from the facts and circumstances of this case the learned trial Judge of the Federal High Court was right in dismissing the Notice of Preliminary Objection of the Appellants on the 28th day of May 2018 (Distilled from grounds 2, 3, 5, 6 and 7).
(3) Whether the Federal High Court has jurisdiction to entertain all matters instituted by the Respondent for the recovery of debts owed it or an eligible financial institution and other matters arising from the provisions of the AMCON Act 2015 (as amended) abuse of the Court’s process not withstanding (Distilled form ground 4).

The learned Counsel for the Appellants submitted that the Respondent (AMCON) in this

present suit as well as ECO Bank are privies in law of Oceanic Bank Int’l PLC having acquired Oceanic Bank Int’l PLC at different times and stepped into the shoes of Oceanic Bank Int’l PLC and can bind the Bank by any actions or steps taken on its behalf.

He submitted that parties in an action also include privies. And that the term includes those who had the opportunity to attend the proceedings and those who ought to have been made parties to the proceedings. He relied on –
– IJALE VS LEVENTIS & CO LTD (1961) 1 ALL NLR PAGE 762.
– LAWAL VS SALAMI (2002) FWLR PART 87 PAGE 638 TO 661 PARAGRAPH E.
– BLACK’S LAW DICTIONARY (8TH EDITION)
– AGBOGUNLERI VS DEPO (2008) ALL FWLR PART 408 PAGE 240 AT 259 PARAGRAPHS A TO B

Learned Counsel for the Appellants referred to the Respondent’s Statement of Claim before the lower Court where it was stated that the Respondent was statutorily established to efficiently resolve the non-performing loan assets of Banks in Nigeria, and that the 1st Appellant was a customer of the distressed Oceanic Bank Int’l PLC and the claim was to recover the overdraft

facilities granted by the Bank to the 1st Appellant, which was guaranteed by the 2nd Appellant. He referred to the following cases:-
– ADEDEJI VS ADEBAYO (2013) ALL FWLR PART 695 PAGE 375 AT 392
– ELEBURUIKE VS TAWA (2011) ALL FWLR PART 591 PAGE 1473 AT 1494 – 1495 PARAGRAPHS G-A.

It was finally submitted on issue No. 1 that the issue and subject matter in Suit No- FHC/IB/CS/13/2018 are the same as in Suit No- I/280/2008and that the parties and privies in the two suits are the same.

In respect of the second issue, learned Counsel for the Appellants set out the parties in suit No- I/280/2008 as:
(1) AZZEZ AYINLA & SONS NIG LTD
(2) AZEEZ AYINLA
AND
(1) OCEANIC BANK INT’L PLC
(2) SABOR RESOURCES LTD
(Auctioneers/Agents of the Bank)

He contended further that the parties to the counterclaim in Suit No: I/280/2008 are the same Oceanic Bank Int’l Ltd (as counter claimant and both Appellants just as it is in is suit No: FHC/IB/CS/13/2018).

It was also argued on behalf of the Appellants that the issue in suit No: I/280/2008 is the

same as the overdraft facilities granted by the Oceanic Bank Int’l PLC to Azeez Ayinla & Sons Nig. Ltd (1st Appellant) and the recovery of the debt arising from the said overdraft which is contained in the counterclaim in suit No: I/280/2008.

In the suit in the Federal High Court (FHC/IB/CS/13/2018) the parties are:-
AMCON AS CLAIMANT
And
(1) AZEEZ AYINLA & SONS NIG. LTD
(2) AZEEZ AYINLA AS DEFENDANTS

Learned Counsel for the Appellants set out the two reliefs contained in the counterclaim in suit No: I/280/2008 in the Oyo State High Court.
The six reliefs at the Federal High Court was also set out.

It was contended by the Appellants that the dispute in Suit No: I/280/2008 in respect of the counterclaim of Oceanic Bank Intl PLC/ ECO Bank PLC is the same as in Suit No: FHC/IB/CS/13/2018.

Learned Counsel for the Appellants submitted that where two similar processes are used against the same adversary in respect of the exercise of the same right which constitutes an improper use of judicial process to interfere with administration of justice that this constitutes an abuse of the Court process. He

relied on the following cases:
– OKE VS EZE (2016) ALL FWLR PART 816 PAGE 405 AT 436-437.
– SARAKI VS KOTOYE (1992) 9 NWLR PART 264 PAGE 156.
– R-BENKAY NIG. LTD VS CADBURY NIG. PLC (2012) ALL FWLR PART 631 PAGE 1450 AT 1464.
– SALVADOR VS INEC (2012) ALL FWLR PART 631 AT 1554 AT 1579 70 1580 PARAGRAPHS C-B.
– A. G. LAGOS STATE VS A. G. FEDERATION (2014) ALL FWLR PART 740 AT PAGE 1296 PARTICULARLY AT 1325 TO 1326 PARAGRAPHS H TO B.
– ADEBOWALE BELLO CONSTRUCTION CO. LTD VS I.B.W.A LTD (1991) 7 NWLR PART 204 PAGE 498 AT 507.
– OWERRI MUNICIPAL COUNCIL VS ONUOHA (2010) ALL FWLR PART 538 PAGE 896 AT 910-911 PARAGRAPHS H-B.
– MABAMIJE VS OTTO (2016) ALL FWLR PART 828 PAGE 883 AT 898 PARAGRAPHS F-G.
– AGWASIM VS OJICHIE (2004) ALL FWLR PART 212 PAGE 1600.

The learned Counsel for the Appellants stated that the Respondent filed this Suit on 1/2/2018 during the pendency of the counterclaim in suit No: I/280/2006 for the same reliefs against the same opponent (the Appellants).

He also stated that the Respondent filed a motion ex-parte along with the originating processes in this suit i.e. Suit No:

FHC/IB/CS/13/2018 and was granted interim orders of attachment and forfeiture against the Appellants on the 14/2/2018 before the Appellants were served with the originating processes. However the Appellants withdrew the counterclaim in Suit No: I/280/2008 on 9/5/2018.

It was submitted that the Respondent’s action overreached the Appellant. He relied on the following cases:
– OWERRI MUNICIPAL COUNCIL VS ONUOHA (supra)
– JUMBO VS PETROLEUM EQUALIZATION FUND (MANAGEMENT) BOARD (2015) ALL FWLR PART 280 PAGE 1430.
– DINGYADI VS INEC (2010) ALL FWLR PART 650 AT PAGE 1204 AT 1255 PARAGRAPHS E TO F.
– DIAMOND BANK PLC VS HOLLIST (2016) ALL FWLR PART 850 PAGE 1007 AT 1044 PARAGRPHS G-H.

It was submitted on behalf of the Appellants that where an abuse of process occurs the Courts do not take it lightly as it is not a mere irregularity but a fundamental vice punishable by dismissal of the offending process.
He relied on the following cases:-
– UKACHUKWU VS PDP (2014) ALL FWLR PART 728 AT PAGE 887 AT 903-904 PARAGRAPHS G-B.
– ATT. GEN. ANAMBRA STATE VS UBA (2014) ALL FWLR PART 277 PAGE 909.
– ATTORNEY GENERAL ONDO STATE VS ATTORNEY GENERAL EKITI STATE

(2001) FWLR PART 79 PAGE 1431 AT 1476 PARAGRAPH B.

On whether the Federal High Court has jurisdiction to entertain all matters instituted by the Respondent for the recovery of debts owed to it or an eligible financial institution and other matters arising from the provisions of the AMCON ACT 2015 (as amended), the learned Counsel for the Appellants submitted that the Federal High Court is bereft of the requisite jurisdiction to determine suit No: FHC/IB/CS/13/2018, because the same was instituted in abuse of Courts process.

He argued that the issue of abuse of Courts process dovetails into the jurisdiction of the Court to hear and determine a matter and the improper use of the judicial process to institute an action robs the Court of its jurisdiction to entertain such action.

Learned Counsel submitted that suit No: FHC/IB/CS/13/2018 being later in time constitute an abuse of Court process. He relied on the following cases:-
– NWEKE VS UDOBI (2001) 5 NWLR PART 706 PAGE 445 AT 461-462.
– AFRICAN RE-INSURANCE CORP. VS JDP CONSTRUCTION NIG. LTD (2003) 13 NWLR PART 838 PAGE 609 AT 635-636.

ONYEABUCHI VS INEC (2002) FWLR PART 103 PAGE 453.
– DINGYADI VS INEC (SUPRA).

The learned Counsel for the Appellants finally submitted that the Federal High Court lacks jurisdiction to entertain matters instituted by the Respondent where the same is instituted in abuse of process of Court. He urged that the appeal be allowed.

The learned Counsel for the Respondent in his response submitted that the suit in the Federal High Court is not an abuse of the process of Court as the parties and subject matters are not the same.

He stated that the learned trial Judge was right in law when he held that the parties are not the same. The suit referred to at the High Court of Justice Oyo State in I/280/2008 has its parties as:-
“1. AZEEZ AYINAL & SONS NIGERIA LTD.
2. ALHAJI AZEEZ AYINAL (AS PLAINTIFFS)
VS
1. ECOBANK
2. SABOR RESOURCES LIMITED
(AS DEFENDANT)”

While the suit at the Federal High Court has its parties thus:
“AMCON AS CLAIMIANT
VS
1. AZEEZ AYINLA & SONS NIG. LTD.
2. MR. AZEEZ AYINLA BOTH AS DEFENDANTS”

Learned Counsel for the Respondent

contended that before a Court can adjudge what amounts to an abuse of Court process, the Court must ensure that the parties are the same, issue and subject matter are the same. He urged that this appeal be dismissed.

The learned Counsel for the Appellants in his reply brief of argument stated that abuse of process simply means the misuse of Court process and it includes acts which otherwise interfere with the course of Justice. He relied on the case of:- OKOROCHA VS. PDP (2015) ALL FWLR PART 786 PAGE 530 AT 579 TO 580 PARAGRAPHS G – B.

It was contended on behalf of the Appellants that the fact that the Respondent is a creation of statute does not mean that any contract it enters into is called a statutory contract, which by inference gives rise to a statutory debt.

It was also argued that the subject matter and issues in Suit No- I/280/2018 and FHC/IB/CS/13/2018 are the same.

Learned Counsel for the Appellants relied on the following cases:-
– OKAFOR VS. A.G. ANAMBRA STATE (1991) 6 NWLR PART 200 PAGE 659 AT 667.
– LAGOS STATE VS. A.G. FEDERATION (2014) ALL FWLR PART 740 PAGE 1296 AT 1325 TO 1326.

He finally urged that this appeal be allowed.

RESOLUTION
The contention of the Appellants’ Counsel is that the suit in the Federal High Court is an abuse of the process of Court.
A careful examination of the suit filed in the High Court of Justice Oyo State on the hand and the suit filed at the Federal High Court, Ibadan Division would reveal that –
While Suit No- I/280/2008 sought to enforce the simple contract between:-
“(1) AZEEZ AYINLA & SONS (NIGERIA) LIMITED
(2) ALHAJI AZEEZ AYINLA
VS.
(1) ECOBANK PLC
(2) SABOR RESOURCES LIMITED”
The Suit was to recover funds of a loan which was never recovered but struck out on 28/5/2018 (see page 225 of the Record.)
On the other hand Suit No:- FHC/IB/CS/13/2018 seeks to recover the statutory debt owed by the Appellants to the Respondent under Section 251 (1) of the 1999 Constitution (as amended) being the Revenue of the Federal Government of Nigeria.
The interest of the defendants in Suit No- I/280/2018 at the High Court stemmed from a simple contract between the parties in that suit as seen on pages 115 – 116 of the Record of Appeal.

But in this case before the Federal High Court, the interest of the Respondent stemmed from the statutory contract birthed under Section 35 of the AMCON Act 2015 (as amended).
Consequent upon the foregoing, I am of the view that their respective interests are not the same as ECOBANK and Sabor Resources Limited cannot enforce or be liable under the AMCON Act which is the basis of the statutory contract before the Federal High Court.
The subject matter at the Federal High Court is one which only the AMCON Act prescribes and governs, and as such ECOBANK and Sabor Resources Limited cannot share in this same interest with the Respondent in this Appeal.
It would therefore be correct to say that at the point of purchasing the eligible bank asset from ECOBANK the Respondent had no privity in law with ECOBANK and Sabor Resources Limited, especially as the subject matters are not the same.
It is also noteworthy that the Respondent did not derive its power and authority to institute action from ECOBANK and Sabor Resources Limited, but from AMCON Act.
In view of the foregoing, it cannot be said that the AMCON is a privy of ECOBANK and Sabor Resources

Limited as contended by the Appellants because the subject matters are not the same.
The learned Counsel for the Appellants argued that the Suit before the Federal High Court is an abuse of Court process.
In OGBORU & ANOTHER VS. UDUAGHAN & OTHERS (2013) 5 – 6 S.C. PART II PAGE 145, it was held among others that:-
“The Black’s Law Dictionary Ninth Edition at page 10 gave the definition of the word abuse as
“A departure from legal or reasonable use; misuse.”
The phrase “Abuse of Process” was also defined at page 11 as “The improper and tortuous use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’s scope.”
Section 5(a) of the AMCON Act empowered the Respondent to acquire eligible assets, and on page 2 of the Record of Appeal the claims of the Respondent against the Appellants include the sale of two filling stations located at Oyo and Ogun states respectively which were never in contention in Suit No- I/280/2008. Nevertheless, by virtue of the statutory powers under Section 49 of the AMCON Act 2015, all

properties belonging to the Appellants were made subject matter of the Suit at the Federal High Court in order to recover the Revenue of the Federal Government of Nigeria. Under Section 251(1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and this has no bearing with Suit No- I/280/2008.
Furthermore, the Suit at the lower Court is not on all fours with the Suit instituted at Oyo State High Court of Justice i.e. I/280/2008.
It is noteworthy that the Suit in the Oyo State High Court i.e. I/280/2008 has been discontinued (see page 225 of the Record of Appeal.)
In the circumstance, I am of the view that there cannot be abuse of Court process where as in this case only one Suit now exists and not two or more suits.
I am fortified in my view above by the decision of the Supreme Court in-IKINE VS. EDJERODE (2002) FWLR PART 92 AT PAGE 1775 PARTICULARLY AT 1787 where it was held among others that:-
“As to whether the action was an abuse of judicial process, the Appellants rely on the fact that the Respondent had two writs on the same subject matter pending in Court. But the respondent discontinued the

earlier writ which contained six reliefs and decided to continue the later one which sought four reliefs. 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 issues in the other action or actions.
It cannot amount to abuse of Court process if what is done was that the Plaintiff filed another action in order to decide to do this instead of seeking an amendment of the earlier suit. I am of the view that there is no abuse Court process in the present instance.”
In conclusion, it is clear after the perusal of the facts of this case and decided authorities on abuse of Court process, that parties and subject matters are not the same as could be seen from the processes in Suit Nos- I/280/2008 and FHC/IB/CS/13/2018. Therefore Suit No- FHC/IB/CS/13/2018 is not an abuse of Court process.
The learned trial Judge was therefore right when he held that the parties and the subject-matters are not the same and he dismissed the application of

the Appellants.

The three issues in this appeal are therefore resolved in favour of the Respondents and against the Appellants.
In the result, this appeal lacks merit and it is hereby dismissed.

There shall be (N250, 000.00) Two Hundred and Fifty Thousand Naira Costs in favour of the Respondent and against the Appellants jointly and severally.
Appeal Dismissed.

NONYEREM OKORONKWO, J.C.A.: The central issue arising in this appeal is whether Suit No. FHC/IB/CS/IB/2018 between Asset Management Corporation of Nigeria Vs. Azeez Ayinla & Sons Nig. Ltd & Anor. is an abuse of Process of Court in that it was instituted during the pendency of a similar Suit No. 1/280/2008 at the Oyo State High Court between the same parties, and instituted by the appellant. As found from the processes filed, it was shown that the parties are not the same. The respondent was also able to show that Suit No. I/280/08 has been discontinued and was no longer pending. Against this scenario, the substratum of the Preliminary Objection was knocked off the application.
At the appeal, Justice Olukayode Jimi Bada JCA holds that there

cannot be abuse of process “where as in this case only one Suit now exists and not two or more Suit”. For that reason, there is no multiplicity of actions to the annoyance and irritation of anybody in the proceedings or harassment of any party using legal machinery.
I agree with Justice Bada JCA that the appeal based on abuse of Process is not made out and the appeal therefore lacks merit.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege to read before now the lead judgment delivered by my learned brother, JIMI OLUKAYODE BADA JCA. I agree with the reasoning and conclusion reached therein.

fundamental defect which ousts the jurisdiction of the appellate Court. See ANI VS. OUT (2017) 12 NWLR (pt. 1578) 30: ODOFIN VS. AGU (1992) 3 NWLR (pt. 229) 350: BRAITHWAITE VS. DALHATU (2016) 13 NWLR (pt. 1528) 32. In OKOLIE VS. ANIEKE (2019) 17 NWLR (pt. 1700) 90 at 108 — 109 paras G-B, the Supreme Court per Aka’ahs JSC held as follows:
“In ODOFIN VS. AGU (SUPRA) Nnaemeka-Agu JSC explained the position of the law at page 371 thus:
I wish to pause here to emphasis that a person who wishes to seek leave on any grounds to appeal after the expiration of the statutory periods to appeal … requires three substantive prayers namely:
1) Extension of time to seek leave to appeal;
2) Leave to appeal and
3) Extension of time within which to appeal.
That any of such application must contain these prayers is not a matter of mere cosmetic importance which could be waived off with levity. Rather it is a matter which goes to the serious issue of jurisdiction of Court. The periods within which a party can appeal in our Courts are prescription of statutes; and leave to appeal where necessary is a requirement of our

Constitution.”
In the instant appeal, the ruling of the lower Court sought to be challenged was delivered on 28th of May 2018. The Notice of Appeal was filed on 13th of June 2018. To my mind the application for extension of time to appeal filed by the Appellants which was granted on 19th November 2018 is an admission on their part that their Notice of Appeal was filed outside the 14 days provided for under S. 24 (2) of the Court of Appeal Act. Furthermore, being an interlocutory appeal, leave of Court was a condition precedent to filing the Notice of Appeal.
The law is trite that when the law provides for a procedure to do an act that procedure must be followed for the subsequent act to be valid. Any act performed in contravention of the procedure provided by law is a nullity. It is of no effect because in the eyes of the law such act has not been performed. See SAUDE VS. ABDULLAHI (1989) 4 NWLR (pt. 116) 387; ADHEKEGBA VS. MINISTER OF DEFENCE (2013) 17 NWLR (pt.1382) 126: MOBIL PRODUCING (NIG) UNLIMITED VS. JOHNSON (2018) 14 NWLR (pt. 1639) 329; NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT VS. KLIFCO (NIG) LTD. (2010) 13 NWLR (pt. 1211) 307.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the application of the appellants for extension of time to appeal granted on the 19th of November 2018 by this Court, they did not seek all the trinity prayers. They failed to apply for extension of time to seek leave to appeal. The procedure laid down by law was not followed. The Notice of Appeal is thus incompetent. Consequently, this Court lacks jurisdiction to entertain this appeal.

In the light of all of the above and the further reasons contained in the lead judgment I also hold that this appeal lacks merit and it is also dismissed by me.
I abide by the order as to costs.

Appearances:

M. O. OGUNSHEYE For Appellant(s)

OLADIPO OLASOPE SAN with him are REMI IGBABO Esq. and ADEBOWALE ADEDOYIN Esq. For Respondent(s)