DIAMOND BANK PLC v. CHIBUEZE CHIAGOROM
(2019)LCN/13903(CA)
In The Court of Appeal of Nigeria
On Monday, the 20th day of May, 2019
CA/OW/306M/2018(R)
RATIO
ABUSE OF COURT PROCESS
This Court has in a plethora of cases considered the said question – what constitutes abuse of judicial process one of such cases which set out the guiding principle is Mrs F. M. Saraki & Anor V. N. A. B. Kotoye (1992) 9 NWLR (Pt. 264) 156 at pages 188-189, per Karibi-Whyte, JSC, as follows:
“The concept of abuse of judicial process is unprecise. It involves circumstances and situations of infinite varieties and conditions. Its (sic) 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 recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigations. 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 issue. See xxxxxx. 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. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WHAT A PARTY SHOULD DO WHEN HE HAS NOT FILED AN APPLICATION FOR LEAVE TO APPEAL WITHIN THE PRESCRIBED TIME
The law is settled as to what an applicant seeking for leave to appeal and who has not brought his application for the requisite leave within the period prescribed for that purpose by the Court of Appeal Act, must pray of this Court. In this regard, see the case of ODOFIN V. AGU (1992) LPELR ? 2225 (SC) amongst many others. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WHAT THE GROUND OF APPEAL EXHIBITED TO AN APPLICATION FOR LEAVE TO APPEAL MUST SHOW
The position of the law is not that the grounds of appeal exhibited to an application for leave to appeal must show/establish the likely success of the appeal but should show that there is an arguable appeal. In this regard see the cases of OBIKOYA V. WEMA BANK LTD (1989) LPELR ? 2176 (SC) and CPC V. NYAKO (2011) LPELR ? 23009 (SC) amongst many others. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
Before Their Lordships
RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPEJustice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSOJustice of The Court of Appeal of Nigeria
Between
DIAMOND BANK PLC Appellant(s)
AND
CHIBUEZE CHIAGOROM Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling): The motion on notice dated 6/7/2018 and filed on 10/7/2018 was brought by the Applicant ? Diamond Bank Plc, pursuant to Section 243(3) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010, Act No. 3, and Order 6 Rule 9(1) of the Court of Appeal Rules 2016. Therein, the Applicant seeks for the following: –
1. AN ORDER of Court granting the Applicant an Extension of time within which to seek leave to appeal against the judgment of the National Industrial Court of Nigeria sitting in Owerri in Suit No. NICN/PH/07/2012 ? Chibueze Chiagorom V. Diamond Bank Plc, dated 31st March, 2014 a copy of which is Exhibit “A” hereto.
2. An Order of Court granting the Applicant leave to appeal against the judgment of the National Industrial Court of Nigeria Owerri in Suit No. NICN/PH/07/2012 ? Chibueze Chiagorom vs. Diamond Bank Plc dated 31st March, 2014.
?3. An Order of Court granting the Applicant an Extension of time within which to appeal against the judgment of the National Industrial Court of Nigeria Owerri in Suit No. NICN/PH/07/2012 ? Chibueze Chiagorom vs. Diamond Bank Plc dated 31st March, 2014.
4. An Order of Court staying further execution of the judgment of the National Industrial Court in Suit No. NICN/PH/07/2012 delivered on 31st March, 2014 pending the determination of appeal against the judgment.?
The Applicant predicated the motion it brought (and which will hereafter be simply referred to as ?motion for leave to initiate an appeal?, on 10 grounds. The grounds read thus: –
1. Upon delivery of the judgment of Court in Suit No. NICN/PH/07/2012 on 31st March, 2014 the Applicant, dissatisfied with the judgment timeously appealed against the said judgment in Appeal No. CA/OW/384/2014.
2. While that Appeal was pending, the Supreme Court of Nigeria handed down decisions in the cases of SKY (sic) BANK PLC. VS. IWU (2017) 16 NWLR (Pt 1590) 14, which decided that an Appellant seeking to appeal generally against the decision of National Industrial Court of Nigeria must first seek the leave of this Court to bring the appeal, in the circumstances.
3. The Court of Appeal Owerri eventually decided in the said Appeal No. CA/OW/384/2014 that the leave of the Court of Appeal was not sought before filing the appeal, consequently, the Applicant’s appeal in Appeal No. CA/OW/384/2014 was struck out by the Court Appeal as being incompetent.
4. After the judgment, the Applicant made consultations with her officers, her solicitors: both in-House (sic) and external solicitors for direction on what to do as a follow-up to the decision of Court striking out the appeal in the circumstances.
5. The Applicant upon due consultations aforesaid is desirous of bringing this application with a view to seeking the leave of court to appeal on trinity prayers against the said decision of the National Industrial Court of Nigeria dated 31st March, 2014.
6. In the meantime, the Respondent has levied execution partly on the judgment of the trial Court in Suit No. NICN/PH/07/2012 in which the Respondent collected the part of judgment debt deposited in Court.
7. That it is in the interest of justice that further execution of Court judgment be stayed pending the determination of Applicant’s appeal because the Respondent who has since lost his job will not be in a position to pay back the judgment sum if the same is given to him, and the appeal eventually succeeds.
8. The grounds of appeal are substantial and arguable. They also have bright chances of success on appeal.
9. The Applicant is in a better position to pay up the judgment debt if further execution thereof is stayed and the appeal fails. The remaining judgment sum will be kept in an interest yielding account till the determination of the appeal.
10. Pursuant to S. 243(3) of the Constitution of the Federal Republic of Nigeria (Third Alteration Act 2010 Act No.3) the leave of the Court of Appeal is needed to enable the Applicant appeal against the judgment of the trial Court in NICN/PH/07/2012 in the circumstances of this case.?
The motion for leave to initiate an appeal as expected has a supporting affidavit. It was deposed to by one Onyekachi Odike on 10/7/2018 and filed on the same date. Exhibits considered relevant were attached to the said affidavit. The Respondent filed a counter affidavit to the supporting affidavit of the motion for leave to initiate an appeal brought by the Applicant. The process was deposed to by one Emenike Nnachi Ichie on 1/11/2018 and filed on the same date. The Respondent also filed a further affidavit in opposition to the motion for leave to initiate an appeal. The process which was sworn to by Emenike Nnachi Ichie on 24/1/2019 was filed on the same date. Exhibits considered relevant were attached to the said counter affidavit and further affidavit. Aside from filing the counter affidavit and further affidavit identified hereinbefore, the Respondent as Applicant also brought a motion on notice dated 30/10/2018 and filed on 1/11/2018 seeking for the dismissal of the Applicant?s motion for leave to initiate an appeal. The Respondent?s motion will hereafter be simply referred to as ?motion for the dismissal of Applicant?s motion for leave to initiate an appeal?. Therein, the Respondent sought for the following reliefs: –
?1. Dismissing the application for leave for enlargement of time and to appeal etc, and for stay of the execution of the judgment of the Court below, filed on 10/7/2018, the same being an abuse of the process of the Honourable Court.
2. Permitting the parties to file written addresses for the hearing of this application.
3. Deeming the written address filed and served on behalf of the Respondent/Applicant in this application as having been properly filed and served.
The grounds for the motion for the dismissal of Applicant?s motion for leave to initiate an appeal, are as follows: –
(a) The proposed grounds of appeal are non compliant with the provisions of Order 6 Rule ((2) of the Court of Appeal Rules in that the grounds do not prima facie show good cause why the appeal should be heard.
(b) The particulars in support of the proposed grounds of appeal are substantially non-compliant with Order 7 Rule 3 of the Court of Appeal Rules the same being argumentative and narrative as particularized in the schedule of facts in support of the application.
(c) Some of the proposed grounds of appeal manifest gross misrepresentation of the content of the judgment sought to be appealed against.
(d) The subject matters of the proposed grounds are issues on which the Supreme Court of Nigeria and the Court of Appeal of Nigeria have made subsisting and binding decisions and thus do not raise any new or substantial issues of fact or law to be determined by the Honourable Court.
(e) Written addresses by counsel will be useful for a more thorough presentation of the parties? position to the Honourable Court.?
Parties duly filed written addresses in respect of the aforementioned two motions before the Court. The written addresses filed by the parties which required to be regularised having being filed out of time, were duly regularised. On 19/2/2019, the two motions referred to hereinbefore were deemed as argued on the processes before the Court.
In the supporting affidavit of the motion for leave to initiate an appeal, the Applicants simply deposed to facts that were no more than a rehash of the grounds for bringing the said motion and which grounds have been set out hereinbefore. In the counter affidavit to the supporting affidavit of the motion for leave to initiate an appeal, the Respondent engaged in expressing his views/opinions in respect of the motive as it were, of the Applicant, in bringing the motion for leave to initiate an appeal against the backdrop of the first appeal lodged by the Applicant against the judgment of the lower Court and which was struck out by this Court. The Respondent also engaged in expressing his views/opinions on the grounds of appeal and their respective particulars, in the notice of appeal the Applicant relies upon in its bid to initiate an appeal against the judgment of the lower Court. In particular, the Respondent deposed in paragraphs 5 and 6 of the counter affidavit in question thus: –
Paragraph 5
I verily believe, based on my knowledge and experience as a lawyer, that the application is a deliberate act of abuse of process of this Honourable Court designed to prevent the Respondent from reaping fully the fruit of the judgment of the NICN in his favour.
Paragraph 6
I also believe that the grounds of appeal consist of complaints on points of law which are not recondite, same having been pronounced upon by the Supreme Court of Nigeria and the Court of Appeal in several decisions which are common knowledge.?
As stated hereinbefore, the Respondent filed a further affidavit in opposition to the Applicant?s motion for leave to initiate an appeal. It is to be noted that the Applicant did not file a further affidavit to the counter affidavit of the Respondent that can be said to be the basis for the said further affidavit in opposition to the Applicant?s motion for leave to initiate an appeal. In the said further affidavit, the Respondent dwelled essentially on the first appeal ? CA/OW/384/2014 brought by the Applicant against the judgment delivered by the lower Court on 31/3/2014 and which was struck out by this Court on ground of incompetence on 16/4/2018. In particular, the Respondent deposed as follows in paragraphs 2-5 of the further affidavit thus: –
Paragraph 2
As a lawyer assisting my Principal in Chambers in the prosecution of this case, I know as fact that after the applicant herein had filed its brief of argument on 8/12/15, the respondent on 18/1/2017 filed an application challenging the Constitutional validity of the notice and grounds of appeal filed on
