ENYIBROS FOODS PROCESSING COMPANY LTD & ANOR V NIGERIAN DEPOSIT INSURANCE CORPORATIONCase Laws . Supreme Court
ENYIBROS FOODS PROCESSING COMPANY LTD & ANOR V NIGERIAN DEPOSIT INSURANCE CORPORATION
In the Supreme Court of Nigeria
Friday, March 30, 2007
Case Number:SC. 271/2001
IDRIS LEGBO KUTIGI, CHIEF JUSTICE, NIGERIA
NIKI TOBI, JUSTICE, SUPREME COURT
GEORGE ADESOLA OGUNTADE, JUSTICE, SUPREME COURT
ALOMA MARIAM MUKHTAR, JUSTICE, SUPREME COURT
WALTER SAMUEL NKANU ONNOGHEN (Lead Judgment), JUSTICE, SUPREME COURT.
1. ENYIBROS FOODS PROCESSING COMPANY LTD2. CHIEF CHRISTOPHER ENYINWA.
1. NIGERIAN DEPOSIT INSURANCECORPORATION2. CHARLES NDUBUISI MBAMALU.
W. S. N. ONNOGHEN. JSC: This is an appeal against the ruling of the Court of Appeal holden at Enugu in appeal No. CA/E/63M/97 delivered on the 2nd day of June 2001 granting the 2nd respondent extension of time within which to apply for leave to appeal, leave to appeal and extension of time within which to appeal. The appellant is not satisfied with that ruling hence the present appeal in which the issues for determination, as identified by learned counsel for the appellants OBI AKPUDO Esq in the appellants’ brief of argument filed on the 19th day of March, 2002 are as follows: – “(1) In all the facts and circumstances of this appeal, was the order of the Court of Appeal granting leave to the applicant/respondent to appeal against the decision of the trial court as a party having an interest in the subject-matter justified? (2) Do the grounds of appeal which the applicant/ respondent seeks to argue if his application for, inter alia, leave to appeal as a “party interested” succeeds genuinely question the jurisdic-tion of the trial court to entertain the substantive suit? If the answer to issue No. 2 is in the negative then: (3) Was the Court of Appeal correct when it did not examine the reasons for the applicant/respondent’s failure to appeal within time before granting the application for inter-alia, extension of time within which to file Notice and Grounds on the grounds that all his proposed grounds of appeal raise issues of jurisdiction? (4) Was the Court of Appeal correct in failing or neglecting to consider or pronounce on the issue (raised before it by the defendants/appellants) to the effect that the application for inter-alia, extension of time within which to appeal as an interested party is an abuse of judicial process?” On the other hand, the issues formulated for determination by learned counsel for the 2nd respondent, ANTHONY I. ANI Esq., in the 2nd respondent’s brief of argument deemed filed on 10/1/06 are as follows:- “(a) Whether in the circum-stances of this case the court below was right in granting the application for extension of time within which to apply for leave to appeal, leave to appeal, and extension of time within which to appeal as an interested party, (grounds 1, 3 and 4 of the notice and grounds of appeal). (b) Whether the application by the applicant/respondent is an abuse of court process (ground 2 of the notice and grounds of appeal).” PAGE| 2 On the 27th day of June 1995 the original plaintiff/respondent, Merchant Bank of Africa Ltd instituted suit No. 0/394/95 against the present appellants under the undefended list claiming the following reliefs:- “(a) N3,045,058.17 being money due to the plaintiff together with accrued interest arising from a credit facility granted to the defendants. (b) 21% interest thereon from 30/4/95 till judgment, (c) 5% interest on the judgment debt until the money is fully liquidated.” For reasons not contained in the record of appeal the matter somehow found its way into the general cause list and the plaintiff filed a Statement of Claim on the 22nd day of September 1995 while the appellants filed their Statement of Defence on the 13th day October 1995. In the Statement of Defence the appellants counter-claimed for the following reliefs:- “(a) Declaration that the property in paragraph 22 of the Statement of Defence/counter claim is the personal property of the second defendant. (b) Declaration that on the construction of the Deed of Legal Mortgage the plaintiff had no right to sell (c) Declaration that all steps, acts, things done or purported to have been done by the plaintiff to the aforesaid deed are ineffectual, null and void. (d) Perpetual injunction.” However, on the 11/8/95 the respondent purchased the property at No. 9 Nwosu Street, Achara Layout, Enugu, subject matter of the counter claim from the original plaintiff. The purchase was before the filing of the counter claim on 13/10/95. On the 28/2/96 suit No. 0/394/95 was struck out following the filing of a Notice of Discontinuance by the original plaintiff and the counter claim was adjourned to 18/4/96 for hearing. Before the date fixed for hearing the appellants filed a motion praying the court for judgment which was fixed for, heard and granted on 8/3/96. PAGE| 3 During the pendency of the action the original plaintiff went into liquidation and was substituted for by the present 1st respondent who appealed against that decision to the Court of Appeal. The 2nd respondent was not a party to the action at the trial court neither was his application to join that appeal granted. Following the refusal of that application the 2nd respondent presented an application before the lower court for the prayers earlier reproduced in this judgment which were duly granted resulting in this appeal. It must be pointed out that the way learned counsel argued the issues leave much to be desired. At page 4 of the appellants’ brief is the beginning, of the argument on appellants’ issue No. 1 which runs through to page 18 where argument on issue No. 2 commences and ends at page 20. It means that though appellants’ learned counsel formulated three substantive issues with a fourth in the alternative, arguments have been presented on two or rather arguments on issues 1-3 have been lumped into issue No. 1 without learned counsel specifically saying so. That apart, what learned counsel argued as issue No. 2 from page 18 of the brief is actually his issue No. 4. It is having regard to the way the issues were formulated and argued by learned counsel for the appellants that I prefer the two issues formulated by learned counsel for the 2nd respondent. In fact the way learned counsel for the appellants presented his argument confirms the fact that there are substantially only two issues calling for determination in this appeal. In arguing the appeal, learned counsel for the appellants submitted that the property in issue in the case belongs to the 2nd appellant who never took a loan from the original plaintiff; that a study of exhibit C – the Deed of Mortgage will reveal that it is not a third party legal Mortgage and that there is nothing to show that the 2nd appellant, who is not a party to exhibit C, authorized the use of his property as security for the loan granted to the 1st appellant by the original plaintiff; that the purported deed of guarantee exhibit D was not signed by the 1st appellant. On the premises of the above, learned counsel submitted that the original plaintiff had no authority to sell or transfer interest in the property to the 2nd respondent. PAGE| 4 Learned counsel further submitted that the mere fact that a person has some interest in or over the subject matter of a case is not, without more, sufficient to qualify him as a “party interested” particularly as the law insists that the time and circumstances of the acquisition of the alleged interest must be examined to determine whether the alleged interest is worthy of protection, relying on Societe Generale Bank (Nig) Ltd v. Afekoro (1999) 11 NWLR (Pt. 628) 521; that for an interest to be so recognized it must be a genuine and legally recognizable interest in respect of the decision which prejudicially affects such interest. Learned counsel then submitted that the interest which the 2nd respondent claims was acquired during the tendency of the case -that the action was instituted on 27/6/95 while the property was purchased on 11/8/95 but paid for on 16/8/95; that the argument that the property was not an issue in the case initiated under the undefended list until the filing of the counter claim on 13/10/95 begs the issue; that even after the purchase of the property, 2nd respondent who was aware of the pendency of the action did not join to protect his alleged interest and as such he should not be granted leave to appeal against any judgment pronounced in the case, relying on Ojogbo v. Itshekiri Communal Land Trustees (1973) NSCC 661; Re Ugadu (1988) 5 NWLR (Pt. 93) 189. Learned Counsel further submitted that to succeed in an application of the nature under appeal, the applicant must establish. (a) that there are grounds of appeal which prima facie, deserve consideration by the courts and (b) that there are good and substantial reasons for his failure to appeal within time relying on UKWU v. Bunge (1997) 8 NWLR (Pt. 518) 527; that the lower court did not consider the reasons for the applicant’s failure to appeal within time before granting the application on the ground that the grounds of appeal raise issues of jurisdiction whereas an examination of the said grounds do not support that contention; that ground one of the grounds of appeal does not raise an issue of jurisdiction in that it does not complain that the matter is either outside the jurisdiction of the court or that the court has no territorial jurisdiction to entertain it; that it only complains that an error of procedure was committed. PAGE| 5 Learned Counsel also submitted that the second ground of appeal does not raise an issue of jurisdiction relying on the dictum of Oguntade, JCA (as he then was) in A.C.B v. Henshaw (1990) 1 NWLR (Pt. 129) at 651; Noibi v. Fikolati (1987) 1NWLR (pt. 52) 619 particularly as it is the duty of the administrative staff of the court to assess and collect adequate fees for processes filed and that their failure cannot be visited on litigants relying on Eke v. Eluwa (2000) 14 NWLR (Pt. 688) 560; that the third ground is also not an issue of jurisdiction particularly as a motion can intervene before the date fixed for hearing; that the failure of the Court of Appeal to consider the reason for the 2nd respondent’s failure to appeal within time has occasioned a miscarriage of justice. On his part, learned counsel for the 2nd respondent conceded that an applicant for extension of time to appeal must satisfy the court that: (a) there exists good and satisfactory reasons for not filing his appeal timeously and that, (b) he has substantial and arguable grounds of appeal. Learned Counsel then submitted that the duty of the court in the consideration of the proposed grounds of appeal at that stage is limited to whether the grounds of appeal are substantial or arguable; that it is not the business of the court at that stage to decide the merit of the grounds of appeal, relying on C.B.N v. AHMED (2001) 11 NWLR (Pt. 724) 369 at 392 – 393, (2001) 7 SCM, 85 It is the further submission of learned counsel that the term a “person having interest” under section 243(a) of the 1999 Constitution which grounded the application in issue means “person aggrieved, or person who has suffered legal grievance against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something” relying on Owena Bank (Nig) Plc v. N.S.E Ltd (1997) 8 NWLR (Pt. 515) 1 at 19; IN RE UGADU (1988) 5 NWLR (pt. 93) 189 at 199; that the 2nd respondent will suffer injury or hardship arising from the decision in suit No. PAGE| 6 0/394/95 delivered on 8/3/96 if the decision is not appealed against; that the interest acquired by the 2nd respondent is not extinguished by lis pendens in that at the time 2nd respondent paid for the property, the title to it was not in issue in 0/394/95 since the 2nd respondent paid for it on 11/8/95 and got receipt on 16/8/95, the issue of title was raised for the first time in the counter claim filed on 13/10/95 by the appellant; that for a party to be caught by the doctrine of lis pendens the following conditions must co-exist:- (a) it must be shown that at the time of sale of the property the suit regarding the dispute about the said property was already pending. (b) it must be an action in respect of real property, not personal property; (c) the object of the action must be to assert title to a specific real property; (d) the other party must have been served with the process, relying on Bua v. Dauda (2003) 13 NWLR (pt. 838) 657 at 686; (2003) 9 SCM, 149 that the case of Societe Generale Bank (Nig) Ltd v. Afekoro supra relied upon by counsel for the appellants is not relevant as this Court held in that case that the transfer of the money at the instance of the police into the appellant’s account was illegal ab initio, whereas in the instant case, there is nothing illegal in the transfer at the time when no case was pending in respect of the property, and therefore the respondent acquired legally recognizable interest in the subject matter of the decision of the trial court. On the reasons for the delay in filing the application for extension of time learned counsel urged the court to note that the 2nd respondent was not a party to suit No. 0/394/95 filed on 22/9/95 i.e the counter claim, after the 2nd respondent had acquired interest in the property; that 2nd respondent sued the bank at Enugu High Court in suit No. E/568/95 claiming declaration that the transfer of the property is null and void and of no effect; that at the time appellants filed the motion for judgment in 0/394/95, they were aware of the interest of the 2nd respondent and the caveat entered at Enugu Land Registry on behalf of the respondent dated 17/10/95 and filed on 2/11/95 prior to the motion for judgment filed on 5/3/96, but failed or neglected to join the 2nd respondent so as to put him on notice; that 2nd respondent’s motion to set aside the judgment in issue in 0/394/95 was dismissed while his application to be joined in the existing appeal by the original plaintiff was struck out on 20/1/2000. In addition, the application giving rise to the instant appeal was filed on 2/3/2000; that the events show that the applicant did not sleep over his right, and that the delay cannot be called inordinate. PAGE| 7 Learned Counsel further submitted that the grounds of appeal raise the issue of jurisdiction of the court to hear and determine the case filed under the undefended list on pleadings without first making an order placing the case in the general cause list, the competence of the counter claim without payment of the appropriate fees and the jurisdiction of the court to hear and determine a case on a date other than the date adjourned to in open court. Citing and relying on Madukolu v. Nkemdilim (1962) 2 All NLR 341, (2001) 3 SCM, 185 learned counsel submitted that the case was not initiated by due process in that certain conditions precedent were not fulfilled before the exercise of the court’s jurisdiction; that the case of Ukwu v. Bunge supra is relevant to this appeal in that this court allowed the extension of time after a delay of 9 years and 6 months because the proposed grounds of appeal raised fundamental issue of jurisdiction; citing and relying of Olaniyan v. Awah (1989) 5 NWLR (pt. 122) 493; llukwe v. Anah (1999) 5 NWLR (pt. 603) 476; Okpoido v. Kpong (1999) 5 NWLR (pt. 604) 595, learned counsel submitted that non payment of filing fees is a fundamental vice that can rob the court of jurisdiction to entertain a matter, and that the only requirement is that the party raising the issue must raise it timeously before taking steps in the proceedings, but that since the 2nd respondent did not participate in the proceedings at the trial court, his only opportunity to raise the issue is in the court below which he has done. Learned Counsel further submitted that the cases cited and relied upon by his learned friend for the appellants on the issue of standing by are not applicable to the facts of this case particularly as the appellants have not shown that the respondent was aware of the existence of the counter claim which raised the issue of title to the property. Relying on the case of University of Lagos v. Olaniyan (1985) 1 NWLR (pt. 1) 156 at 163; Williams v. Mokwe (2005) 14 NWLR (pt. 945) 249 at 269; University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143 at 148 and Shittu v. Osibanjo (1988) 7 SCNJ 37 at 45, learned counsel submitted that an appellate court will not interfere with the exercise of discretion by a lower court if the exercise is not manifestly wrong, arbitrary, reckless or injudicious and urged the court to resolve the issues against the appellants. PAGE| 8 Both counsel have agreed that an applicant under Order 3 Rule 4(2) of the Court of Appeal Rules must satisfy the following requirements:- (a) there must exist good and satisfactory reasons for not filing his appeal timeously, and (b) that he has substantial and arguable grounds of appeal. It is settled law that a grant or refusal of an application for extension of time within which to appeal involves the exercise of the discretion of the court before which the application pends and that the said application must be supported by an affidavit which must state sufficient reasons to explain the delay; it must contain the judgment or ruling of the court against which the applicant is seeking to appeal and the proposed grounds of appeal against such judgment or ruling. It should, however, be noted that two instances of delay may be involved in an application for extension of time for leave to appeal which must be explained. These are:- (a) the reason why the applicant could not appeal within the time statutorily allowed to appeal, and (b) the reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the applicant to appeal. It is settled that the duty of the appellate court in the consideration of the grounds of appeal proposed by the appellant and filed in support of the application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is therefore not the duty of the court at that stage to decide the merit of such grounds as filed in support of the application for to do so would amount to deciding the substantive matter in an interlocutory application which the law frowns upon. See Ibodo v. Enarofia (1980) 5 – 7 S.C 42; University of Lagos v. Olaniyan (1985) 1 NWLR (pt. 1) 156; Obikoya v. Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157; Holman Bros (Nig) Ltd v. Kigo (Nig). (1980) 8-11 S.C 43; Egbe v. Onogun (1972) 1 All NLR (Pt. 1) 95; Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806. PAGE| 9 In addition to the above principles of law relevant to a determination of an application for extension of time for leave to appeal etc, there is another very important principle that guides an appellate court when called upon to review, by way of appeal, the discretion exercised by the lower court in granting or refusing to grant an application of that nature. The principle is that the attitude of appellate courts to the exercise of discretion by lower courts is not dissimilar to that adopted over the issue of findings of fact, which is that unless the exercise of discretion by a court of first instance or by a lower court is manifestly wrong, arbitrary, reckless or injudicious, an appellate court would not interfere merely because faced with similar circumstances it would have reacted differently. See University of Lagos v. Olaniyan supra at 163, Williams v. Niokwe (2005) 14 NWLR (Pt. 945) 249 at 269. The following facts are not disputed: (i) Suit No. 0/394/95 instituted by the original plaintiff claimed recovery of debt simpliciter from the appellants, under the undefended list. (ii) There is no evidence on record to explain how the suit came to be on the general cause list and when pleadings were ordered. Though learned counsel for the appellants has stated that the record compiled by the respondent for the appeal was incomplete, he never told the courts the date, if any, when the order transferring the matter from the Undefended List to the General Cause List was made by the court of trial, which would have normally have been the case if such a date existed. (iii) that the respondent paid for the property in question on the 16/8/95 and at that time there was no claim on the title of that property in court. (iv) that the dispute as to the title to the property only came into court when appellants filed a Counter Claim in suit No. 0/394/95 on the 13th day of October 1995. PAGE| 10 (v) that the respondent was never a party to the original claim or the counter claim even though from the facts the appellants were aware of the fact that he had acquired interest in the said property nor was he served with any process relating thereto. (vi) that on the 2/11/95 the respondent, through his solicitor filed a caveat at the Enugu Land Registry indicating his interest on the property well before the appellants filed their motion for judgment on 5/3/96 which was granted on 8/3/96 but without joining the respondent. (vii) that of all the three reliefs sought by the appellants in the counter claim two were declaratory while the third was for injunctive relief (viii) that the trial court on the 8/3/96 granted the motion for judgment arid granted all the reliefs including the declarations without the appellants giving evidence at the proceedings. (ix) that the counter claim as a fresh action ought to have been paid for as an originating process but was not. (x) that the 8/3/96 when the motion was heard and judgment entered for the appellants was not the original date agreed upon by both counsel and to which the case was adjourned in open court. (xi) that at the time judgment was entered there was an application by the original plaintiff praying the court for extension of time to file a defence to the counter claim filed on 8/3/96 – see pages 57 – 62 of the record. Now the question as to whether the 2nd respondent is a party or person having interest as envisaged under section 243(a) of the 1999 Constitution so as to entitle him to apply for extension of time to seek leave to appeal etc etc. I have no doubt at all and I agree with the lower court that he is. There is no doubt that the 2nd respondent purchased the property from the original plaintiff in the action and before the appellants, by their counter claim, put the issue of title to that property in contention. By that token the 2nd respondent acquired a legally recognizable right to the property worthy of protection by appeal against any decision of a court that adversely affects same. In my view, it cannot, under the circumstances and the facts of this case be said that the 2nd respondent bought the property during the pendency of the case when the title to that property was not in issue in the litigation as at the time 2nd respondent bought the property; it only became an issue after the filing of the counter claim and at that time the property had already been bought. PAGE| 11 In any event, it is the contention of learned counsel for the 2nd respondent that the principle of lis pendens does not apply to action for personal property such as recovery of money as was the case in the original action but to real property which was the action initiated by the counter claim after the property had been bought and paid for. The above submission obviously make the issue arguable and subject to resolution by the Court of Appeal at the hearing of the appeal, particularly as the payment of the purchase price for the property automatically confers a right to same on the respondent which right is enforceable unless otherwise determined. Turning to the proposed grounds of appeal in issue, the complaints are as follows:- “GROUND OF APPEAL 1. The learned trial judge lacked the jurisdiction to determine the suit on pleadings without first giving a decision on the suit as in the Undefended List. PARTICULARS OF LACK OF JURISDICTION (i) The claim in the suit dated 27/6/95 and filed on 29/6/95 was placed on the Undefended List, and as such ought to be determined under Order 24 Rule 9 of the Anambra State High Court. (ii) The trial judge did not make any order for transfer of the suit from the Undefended List to the general cause list as shown from the record. (ii) The Defendants/Respondents did not at all file a Notice of Intention to defend, but given judgment upon their Counter-Claim. 2. The learned trial judge erred in law in giving judgment for the respondents on their counter-claim when appropriate fees were not paid therefore. PARTICULARS OF ERROR (i) The Defendants/Respondents filed their Statement of Defence and Counter-Claim (ii) There was no suit properly commenced on the counter-claim before the judge at the time he entered judgment for the Respondents. PAGE| 12 3. The learned trial judge lacked jurisdiction to entertain the suit on the day he did. PARTICULARS OF ERROR (i) On 23/11/95 the suit was adjourned to 28/2/96. (ii) On 28/2/96 the suit was struck out and the counter-claim adjourned to 18/4/96. (iii) The court heard the case which was properly adjourned in the presence of parties and their counsel on 5/3/96 instead of 18/4/96 when it was properly adjourned.” These are the grounds of appeal which learned counsel for the 2nd respondent and the lower court agreed to have raised issues of jurisdiction of the trial court but which learned counsel for the appellants contend do not. I had earlier in this judgment stated the principles of law that guide the courts in considering the substantiality of proposed grounds of appeal at the stage of considering whether or not to grant an application of the nature giving rise to the instant appeal. It is generally accepted that the merits of the proposed grounds of appeal are not to be gone into at that stage of the proceedings. Suffice it, however, for me to say that the issue raised in the grounds of appeal are really substantial and arguable as has been demonstrated by both counsel in their respective briefs of argument earlier summarized in this judgment. For instance taking the question as to whether the non-payment of filing fees for the counter claim robs the Court of the jurisdiction to entertain the counter claim both counsel have cited cases in support of their contentions and it is only left for the Court of Appeal to determine which version is the correct one having regard to the law on the matter. The question, simply put is whether a suit can be said to have been legally filed or instituted when the requisite filing fees has not been paid by the appellants and, as a follow up whether the court can be said to be without jurisdiction in the circumstance to entertain the said ‘suit’ or ‘action’ As I earlier stated in this judgment it is not the duty of the court at this stage to pronounce on the merit of the grounds but applying the principles of law stated by this Court in the case of Madukolu v. Nkemdilim supra to the effect that a court is competent when:- PAGE| 13 “(a) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising jurisdiction; and (c) the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.” particularly (c) above, it becomes very clear that where a complaint in any ground of appeal is about failure to observe due process and non – fulfillment of any condition precedent to the exercise of jurisdiction, such as payment of filing fees, giving judgment on a matter under the undefended list on pleadings without first and foremost ordering a transfer of the matter from the undefended list to the general cause list and pleadings; and hearing a matter on a date other than the agreed adjourned date by the parties and the court clearly, to my mind raise issues of jurisdiction of the court to entertain the matter for non fulfillment of conditions precedent. On the issue as to whether the 2nd respondent did satisfactorily explain his reasons for the delay in presenting the application, I agree with the lower court that he did particularly as the record clearly show that he was not aware of the pendency of the action and that whereas the appellants knew of his interest in the property they deliberately did not put him on notice of the proceedings neither did they apply to have him joined in the matter. The records show that 2nd respondent took many steps to try to protect his interest in the matter ever since he became aware of the problems, one of which is to apply for leave to appeal against the judgment as a person interested. That apart, having found as a fact that the grounds of appeal raise substantial and arguable issues of jurisdiction of the trial court, that alone is enough for the lower court to have granted the application particularly as jurisdiction is the live wire of any adjudication. One must also not lose sight of the glaring fact that the judgment of the trial court was entered without taking evidence in proof of the declaratory reliefs claimed by the appellants. PAGE| 14 When one looks closely at the facts of this case it becomes obvious that the more you look the less you see! and that the proceedings leave much to be desired. Learned counsel for the appellants appears bent on sweeping things under the carpet whereas it is in the interest of justice that parties are heard in support of their contending positions. This appeal has come before this court simply because learned counsel for the appellants believes that the court ought to shut out the respondent by determining the appeal on the merit at the interlocutory stage of the proceedings. This has led to the time of the parties and the courts being wasted. On issue No. 2 learned counsel for the appellants stated that suit No. E/326/26 was pending at the Enugu High Court at the time the application resulting in the instant appeal was filed; that both the suit and the application were commenced by the respondent and have in substance the same subject matter; that the 2nd respondent should not be allowed to approbate and reprobate at the same time since to do so amounts to abuse of court process; that the lower court erred in failing to pronounce on the issue which was placed before it and that this has led to a miscarriage of justice. On his part, learned counsel for the 2nd respondent submitted that the application is not in abuse of court process because the parties and the subject matter in the two suits are different; that in any event the suit before the Enugu High Court was discontinued and that the failure of the lower court to consider the effect of suit No. E/326/96 on the application before it does not result in a miscarriage of justice as argued by counsel for the appellants. It should be noted that learned counsel for the appellants has not filed a reply brief in this appeal so I take it that the issue as to the discontinuance of suit No. E/326/96 and the parties thereto and their subject matter not being the same have been conceded by counsel for the appellants. In any event, the fact that the suit was discontinued before arguments on the application took the bottom off the complaint of the appellants on that issue particularly as both suits or matters must co-exist; apart from other requirements such as the parties and subject matter must be the same; for one to legally talk of abuse of court process. In the circumstances I resolve the second issue against