FADAHUNSI & ANOR v. AMCON (2020)

FADAHUNSI & ANOR v. AMCON

(2020)LCN/14472(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 24, 2020

CA/L/1024/2018

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

ENGR. TOLU FADAHUNSI (Suing For Himself And For The Entire Family Of Late Samuel Olatunde Fadahunsi) 2. GENERAL TELEPHONES AND ELECTRONICS LIMITED APPELANT(S)

And

ASSETS MANAGEMENT CORPORATION OF NIGERIA RESPONDENT(S)

RATIO

THE CONCEPT OF ABUSE OF COURT PROCESS

In order to do balanced justice to this knotty issue, it is germane to comb through and pluck out some salient features of abuse of Court process as encapsulated in sea of case – law authorities. The term “abuse of Court process” is an elusive precept in the wide domain of litigation. It exhibits variegated forms and is disobedient to one single definition. It has become a mantra in adjudication, usually erected, as a shield, by defending parties to truncate the life span of an action at its infancy. A law Lord, Nnaemeka-Agu, JSC, captured graphically the purport and hallmarks of the term in the celebrated case of Saraki v. Kotoye (1992) 11/12 SCNJ (Pt. 1) 26 at 48-49, (1992) 9 NWLR (Pt. 264) 156 at 188, in these illuminating words:
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 recognised that the abuse of process may lie in both a proper and 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… Thus the multiplicity of actions on the same subject 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.
These all-encompassing features of abuse of Court process have been severally re-echoed by the apex Court in avalanche of decided authorities, see CBN v. Ahmed (2001) 11 NWLR (Pt. 7424) 369; Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392; Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154; Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347; Ogboru v. Uduaghan (2011) 17 NWLR (Pt. 1277) 727; Barigha v. PDP (2013) 6 NWLR (Pt. 1349) 108; Igbeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 225; Ogboru v. Uduaghan (2013) 12 NWLR (Pt. 1370) 33; Denton-West v. Jack (2013) 15 NWLR (Pt. 1377) 205; Ikechukwu v. Nwoye (2015) 3 NWLR (Pt. 1446) 367; Okorocha v. PDP (2014) 7 NWLR (Pt. 1406) 213 Bukoye v. Adeyemo (2017) 1 NWLR (Pt. 1546) 173; Mabamije v Otto (2016) 13 NWLR (Pt. 1529) 171, Oyeyemi v. Owoeye (2017) 15 NWLR (Pt. 1580) 364; PDP v. Sherrif (2017) 15 NWLR (Pt. 1580) 364; Stanbic IBTC Bank Plc v. L.G.C. Ltd. (2017) 18 NWLR (Pt. 1598) 431; Conoil v. Vitol S.A. (2018) 9 NWLR (Pt. 1625) 463; Alli v. NUC (2018) 15 NWLR (Pt. 1641) 161; Nwora v. Nwabueze (2019) 7 NWLR (Pt. 1670) 1; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534; Dike-Ogu v. Amadi (2020) 1 NWLR (Pt. 1704) 45. PER OGBUINYA, J.C.A.

DEFINITION OF A PARTY TO A SUIT

A party is a person by or against whom a legal action is sought and whose name is designated on the record as plaintiff or defendant, see Green v. Green (2001) FWLR (Pt. 76) 795; Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 494; Bello v. INEC (2010) 8 NWLR (Pt.1196) 342; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229. In law, parties encompass privies which are classified into three: (1) Privies in blood (as ancestor and heir) (2) Privies in law (as testator and executor; intestate and administrator) and (3) Privies in estate (as vendor and purchaser, lessor and lessee), see Coker v. Sanyaolu (1976) 9-10 SC 203; Oyerogba v. Olaopa (1998) 12 SCNJ 115. PER OGBUINYA, J.C.A.

WHETHER OR NOT A COURT HAS JURISDICTION TO ADJUDICATE OVER ACADEMIC DISPUTES

It is settled law, that a Court is drained of the necessary jurisdiction to adjudicate over academic disputes. This is so even if their determination will enrich the jurisprudential content of the law. Such academic questions are divorced from live issues which engage the adjudicative attention of the Courts, see A.-G., Anambra State v. A.-G., Fed. (2005) 9 NWLR (Pt. 931) 572; Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; FRN v. Borisade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2 NWLR (Pt. 1442) 103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva (2017) 10 NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343. PER OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the Federal High Court, Lagos Division (hereinafter addressed as the “lower Court”), coram judice: Saliu Saidu, J., in Suit No. FHC/L/CS/1964/2017, delivered on 2nd July, 2018. Before the lower Court, the appellants and the respondent were the plaintiffs and the defendant respectively.

The facts of the case, which transmuted into the appeal, are amenable to brevity and simplicity. The appellants were indebted to the former Intercontinental Bank Plc through an unpaid loan in which they mortgaged the first appellant’s property at Plot 871 Ozumba Mbadiwe Avenue, Victoria Island, Lagos as collateral. The Access Bank Plc acquired Intercontinental Bank Plc, which had sold the appellants’ debt, as an Eligible Bank Asset, to the respondent. The respondent sued the second appellant in the Federal High Court, Lagos, in Suit No. FHC/L/CS/1355/2012, to recover the property and therein obtained ex-parte order of mareva injunction against it. It took possession of the property based on the mareva injunction order.

The second appellant filed a preliminary objection to the suit on the ground that it was an abuse of Court process. The lower Court dismissed the objection. The appellant’s appeal to the Court of Appeal, in Appeal No. CA/L/336/2015, was allowed and the suit was declared as an abuse of Court process on 10th March, 2017. Sequel to that declaration, the appellants beseeched the lower Court, via a writ of summons filed on 20th December, 2017, and tabled against the respondent the following reliefs:
i. A DECLARATION that the plaintiffs are entitled to be compensated by way of damages for the deprivation of the use, letting and occupation of the property at 871, Ozumba Mbadiwe Avenue, Victoria Island, Lagos, for six years from 2012 till 2017, pursuant to the Mareva Injunction dated 21st November, 2012, obtained by the Defendant, and which, by the consequent Ruling of the Court of Appeal dated 10th March, 2017, was found to have been unjustified, baseless and a mere abuse of legal process.
ii. The sum of N165,000,000.00 (One Hundred and Sixty-five Million Naira) being the rental value of the property at 871, Ozumba Mbadiwe Ayenue, Victoria Island, Lagos

from the 21st November, 2012 till 2017 lost, suffered by and denied to the Plaintiffs. As a result of the said Mareva Injunction obtained by the Defendant from the Federal High Court in Suit no FHC/L/CS/1355/12 (between Asset Management Corporation of Nigeria vs. General Telephone Electronics Limited) April, 2017 when the Defendant finally handed over the keys to the plaintiffs.
iii. The sum of N15,000,000.00 (Fifteen Million Naira) representing the drop in the rental value of the Plaintiff’s said property at 871 Ozumba Mbadiwe Avenue, Victoria Island, Lagos from N30 Million per annum to N25 Million per annum for the years 2015, 2016 and 2017, due to the poor state of repairs/depreciation of the said property.
iv. N135,231,780.00 (One Hundred and Thirty Five Million, Two Hundred and Thirty One Thousand, Seven Hundred and Eighty Naira) being the total cost of renovating/refurbishing the property at 871, Ozumba Mbadiwe Avenue, Victoria Island, Lagos as a result of the dilapidation which it suffered due to the said unlawful and unjustified occupation by the Defendant, its servants, agents and or privies
v. The sum of N100,000,000.00 (One

Hundred Million Naira) general damages for the inconvenience suffered by the plaintiff by reason of the Defendant’s takeover of the property at 871, Ozumba Mbadiwe Avenue, Victoria Island, Lagos, pursuant to the Mareva Injunction dated 21st November, 2012.
vi. Interest on the said sum of N165,000,000.00 (One Hundred and Sixty-Five Million Naira) at the rate of 21% per annum from the 21st of November, 2012, till the date of judgment herein and thereafter at the same rate until final liquidation thereof.

In a swift reaction, the respondent joined issue with the appellants and denied liability by filing a statement of defence on 19th December, 2017. The respondent greeted the suit with a preliminary objection, filed on the same 19th December, 2017, which prayed the lower Court to dismiss the suit on diverse grounds. The appellants responded to it. The lower Court, duly, heard the preliminary objection. In a considered ruling, delivered on 2nd July, 2018, found at pages 785-795, volume 2 of the record, the lower Court upheld the objection and struck out the suit as an abuse of Court process.

The appellants were dissatisfied with decision.

Hence, on 11th July, 2017, the appellants lodged a 4-ground notice of appeal, copied at pages 796-801, Volume 2 of the record, wherein they prayed this Court for:
i. AN ORDER setting aside the ruling of the lower Court.
ii. AN ORDER allowing this appeal.
iii. AN ORDER directing the parties to go before the lower Court for the proper hearing of the case before the Court.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of civil appeals in this Court. The appeal was heard on 25th June, 2020.

During its hearing, learned appellants’ counsel, Alade Agbabiaka, SAN, adopted the appellants’ brief of argument, filed on 9th October, 2018, and the appellants’ amended reply brief, filed on 27th May, 2020 but deemed properly filed on 25th June, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondents’ counsel, N.O. Balogun, Esq., adopted the amended respondent’s brief of argument, file on 1st August, 2019 but deemed properly filed on 30th April, 2020, as

forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellants’ brief of argument, learned counsel distilled two issues for determination to wit:
a. Whether the Appellant’s reliefs before the lower Court in this matter and the reliefs in suit no. LD/52/09; suit No; ID/256m/2008 and Appeal No; CA/L/419/14 bother on the same issues, parties or subject matter so as to constitute an abuse of Court process.
b. Whether in the light of the cause of action forming the basis of the institution of the present action, and the Ruling of the Court of Appeal in appeal No. CA/L/336/2015, delivered on the 10th March, 2017, the case of the Plaintiffs is premature and/or the Plaintiffs/Appellant are not entitled to the reliefs being sought herein before the lower Court.

In the same vein, learned respondent’s counsel, in the amended respondent’s brief of argument, crafted two issues for determination, viz:
1. Whether the suit is not an abuse of Court process?
2. Assuming without conceding that the suit is not an abuse of Court process, whether the Appellants can be allowed to proceed with

their claims for damages on the property, subject matter of the suit, when the Appellants’ legal rights over same have not matured and/or determined?

A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent’s issues can be conveniently subsumed under the appellants’. For this reason of sameness, I will decide the appeal on the issues nominated by the appellants: the undisputed owners of the appeal.

Arguments on the issues:
Issue one.
Learned appellant’s counsel analysed the reliefs, issues and parties in Suit Nos. LD/52/2009, LD/256m/2008, CA/L/419/2014 FHC/L/CS/1355/2012, CA/L/336/2015 and FHC/L/CS/1964/2017. Counsel then submitted that the lower Court was wrong to hold that the last suit was an abuse of Court process because the subject matter, the issues, reliefs and parties were not the same. He relied on Plateau State v. A-G, Fed. (2006) 3 NWLR (Pt. 967) 346; C.O.M. Inc. v. Cobham (2006) 15 NWLR (Pt. 1002) 283. He conceded that there are many suits connected with the loan facility and the mortgaged property. He reasoned that these suits were not filed to

mainly annoy or harass the opponents nor brought malafide. He citedFasakin Foods (Nig) Co. Ltd. v. Shosanya (2003) 17 NWLR (Pt. 849) 239. He claimed that the respondent failed to prove that the action was brought in bad faith.

On behalf of the respondent, learned counsel tabulated the parties in those suits and insisted that they were the same. He explained that a suit filed against the original owner of a property was against his successor-in-title and privies. He referred to LSBC v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82. He stated that the respondent is a privy and successor-in-title to Access Bank Plc. He noted that the appellants had argued in CA/L/336/2015 that parties were the same and could not approbate and seprobate. He cited Hein Nebelung Isensee K.G. v. UBA Plc (2014) All FWLR (Pt. 719) 1137. He highlighted the reliefs in the suits. He asserted that the reliefs related to the debt of the second appellant and its rights over the mortgaged property. He observed that a right to damages is based on the existence of legal right. He referred to Oshi v. Agogo-Abete (2010) 1 SCNJ 322; Fombo v. Rivers State Housing & Property Dev. Authority

(2005) 5 SCNJ 213. He concluded that the subject matter is still the same since the damages sought in the appellants’ suit were based on the ownership of the mortgaged property.

Issue two.
Learned appellant’s counsel submitted that the appellants’ action created different rights and reliefs from the other pending suits and they were entitled to remedy based on the maxim of ubi jus ibi remedium. He summarised the appellants’ complaints in their suit and stated they were based on the decision in Appeal No. CA/L/336/2015. He narrated the essence of undertaking as to damages. He referred toAnike v. Emehelu (1990) 1 NWLR (Pt. 128) 603; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; Onyemelukwe v. Attamah (1993) 5 NWLR (Pt. 293) 350. He took the view that the action was not premature as it arose out of wrongfully obtained order of possession of the mortgaged property. He stated the meaning of cause of action as noted inA-G, Fed. V. Abubakar (2007) 10 NWLR (Pt. 1041) 3 (sic); Michael v. State (2002) 1 NWLR (Pt. 748) 500. He claimed that the appellants had valid cause of action caused by the respondent’s acts

on the mortgaged property and it would be liable under Section 44 of the Asset Management Corporation of Nigeria Act, 2010 (AMCON Act).

For the respondent, learned counsel contended that the lower Court was right to declare the suit as premature because the ownership of the mortgaged property, the basis of the action, had not been determined. He stated the effects of legal mortgage as noted in Adetono v. Zenith Bank PLC (2011) 12 SCN 497. He said that the respondent had a right to possession of the mortgaged property. He claimed that the appellant had no reasonable cause of action and the locus to institute the action. He relied on Okwu v. Umeh (2016) 1 SCNJ 129. He reasoned that Appeal No. CA/L/336/2015 did not determine the rights of the parties.

Learned counsel argued that the appellants’ action was statute-barred because the respondent handed over the property to them on 15th April, 2017 and they filed the action on 20th December, 2017. He cited Section 2 (a) of the Public Officers (Protection) Act. He enumerated the facts which showed that the respondent was protected under the Act against the appellants’ suit. He referred to

Sunshine Oil and Chemical Dev. Co. Ltd. v. AMCON (unreported) Appeal No. CA/IB/459/2014 delivered on 11th December, 2017. He pointed out that the issue of limitation law is not a fresh issue because it is an issue of jurisdiction which can be raised without leave of Court. He cited Zakari v. Nigerian Army (2015) All FWLR (Pt. 798) 850; FRIN v. Gold (2007) 5 SCNJ 302.

On points of law, learned appellants’ counsel contended that the appellants had the right to own the mortgaged property under Section 44 of the Constitution, as amended, and they had the right to enforce it. He took the view that the issue of statute-bar was incompetent because the respondent did not obtain leave of Court. He referred to Adetona v. Edet (2004) 16 NWLR (Pt. 899) 338. He postulated, in the alternative, that the action was an exception to the Public Officers (Protection) Act as the respondent acted in bad faith and without legal jurisdiction. He cited Ibeto Cement Co. Ltd. v. A.-G., Fed (2008) 1 NWLR (Pt. 1069) 470; the decision in Appeal No. CA/L/336/2017. He added that the action was brought within 3 months as the respondent’s action on the property was continuous.

He asserted that the respondent was challenging the decision in Appeal No. CA/L/336/2017 without appealing against it which amounted to this Court sitting on appeal over its decision therein. He citedFBN Plc v. Asubop & Co. (Nig) Ltd. (sic-no citation); Ogunko v. Shelle (2004) 6 NWLR (Pt. 1136) 13.

Resolution of the issues
In the interest of orderliness, I will attend to the issues in their numerical sequence of presentation by the feuding parties. To this end, I will kick start with the treatment of issue one. The kernel of the issue, which appears seemingly stubborn, is canalised within a narrow compass. It chastises the lower Court’s finding/declaration that the appellant’s suit, which transfigured into the appeal, is an abuse of process Court owing to the pendency of: Suit No. LD/52/2009, Suit No. ID/256M/2008 and Appeal No. CA/L/419/2019.

In order to do balanced justice to this knotty issue, it is germane to comb through and pluck out some salient features of abuse of Court process as encapsulated in sea of case – law authorities. The term “abuse of Court process” is an elusive precept in the wide domain of

litigation. It exhibits variegated forms and is disobedient to one single definition. It has become a mantra in adjudication, usually erected, as a shield, by defending parties to truncate the life span of an action at its infancy. A law Lord, Nnaemeka-Agu, JSC, captured graphically the purport and hallmarks of the term in the celebrated case of Saraki v. Kotoye (1992) 11/12 SCNJ (Pt. 1) 26 at 48-49, (1992) 9 NWLR (Pt. 264) 156 at 188, in these illuminating words:
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 recognised that the abuse of process may lie in both a proper and 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… Thus the multiplicity of actions on the same subject 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.
These all-encompassing features of abuse of Court process have been severally re-echoed by the apex Court in avalanche of decided authorities, see CBN v. Ahmed (2001) 11 NWLR (Pt. 7424) 369; Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392; Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154; Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347; Ogboru v. Uduaghan (2011) 17 NWLR (Pt. 1277) 727; Barigha v. PDP (2013) 6 NWLR (Pt. 1349) 108; Igbeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 225; Ogboru v. Uduaghan (2013) 12 NWLR (Pt. 1370) 33; Denton-West v. Jack (2013) 15 NWLR (Pt. 1377) 205; Ikechukwu v. Nwoye (2015) 3 NWLR (Pt. 1446) 367; Okorocha v. PDP (2014) 7 NWLR (Pt. 1406) 213 Bukoye v. Adeyemo (2017) 1 NWLR (Pt. 1546) 173; Mabamije v Otto (2016) 13 NWLR (Pt. 1529) 171, Oyeyemi v. Owoeye (2017) 15

NWLR (Pt. 1580) 364; PDP v. Sherrif (2017) 15 NWLR (Pt. 1580) 364; Stanbic IBTC Bank Plc v. L.G.C. Ltd. (2017) 18 NWLR (Pt. 1598) 431; Conoil v. Vitol S.A. (2018) 9 NWLR (Pt. 1625) 463; Alli v. NUC (2018) 15 NWLR (Pt. 1641) 161; Nwora v. Nwabueze (2019) 7 NWLR (Pt. 1670) 1; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534; Dike-Ogu v. Amadi (2020) 1 NWLR (Pt. 1704) 45.
It is discernible from the inelastic and malleable nature of abuse of judicial process, that there are no hard and fast rules in detecting the absence or presence of it in any action. Put simply, a Court is enjoined by law to examine each case, predicated on its facts and circumstances, in order to ascertain if it displays an abuse of Court process or not, see Waziri v. Gumel (2012) 9 NWLR (Pt. 1304) 185. On this score, the factual antecedents of each case have to be matched with the negative elements of abuse of Court process. The barometer to gauge the existence of abuse of Court process is the presence of multiplicity of suits bordering on the same issues and subject-matter between the same parties.

Now, the mainstay of the appellants’ chief grievance, indeed their trump card on the

vexed issue, is that the parties, reliefs, issues and subject-matter of Suit No. LD/52/2009, Suit No. ID/256m/2008, Appeal No. CA/L/419/2014 and Suit No. FHC/L/CS/1964/2017, which mothered this appeal, are not the same to make the last an abuse of Court process. Expectedly, the respondent set up an antithetical stand, id est, that they share those features in common. In due allegiance to the dictate of the law, I will situate those features, which are the casus belli, in those cases. The raison d’etre for the juxtaposion is simple. It is to ascertain if they are symmetrical or distinctive features common to them. I will handle them seriatim.

In this wise, my first port of call is the parties. Unarguably, the nomenclature and configuration of parties are, invariably located at the dawn of every suit. For the sake of neatness, I will take the cases in their chronological order of institutions. Suit No. ID/256M/2008 was filed on 15th April, 2008, in the High Court of Lagos State, coram judice: Oyefeso, J., via an originating summons. It monopolises pages 490-506, Volume II of the record. The claimants therein are Intercontinental Bank Plc and Onyeke

Edoka Dox and the appellants as defendants. Then, came Suit No. LD/52/2009, filed on 19th January, 2009, in the High Court of Lagos State, coram judice: Onyeabo, J, by dint of writ of summons. It is wrapped between pages 507-523, volume II of the record. The second appellant and the Intercontinental Bank Plc are the claimant and the defendant respectively. The Appeal No. CA/L/419/2019, an offshoot of the challenge of the competence of Suit No. LD/52/2009, is encased between pages 529-537, volume II, of the record. The appellant is Access Bank Plc while the second appellant is the respondent. Then, Suit No. FHC/L/CS/1964/2017, filed in the lower Court, Federal High Court Lagos Division, has the appellants and the respondent as the respective plaintiffs and defendant.

It is axiomatic, that the second appellant is a common denominator in all the matters in either side of the divide. Onyeke Edoka Dox made his debut, of course the only one, in Suit No. ID/256m/2008. The first appellant is a party in Suit No. ID/256m/2008 and Suit No. FHC/L/CS/1964/2017- the forerunner of this appeal. The Intercontinental Bank Plc is a party in ID/256m/2008 and LD/52/2009

while the Access Bank Plc made its first and only appearance in Appeal No. CA/L/419/2019. The Intercontinental Bank Plc was inherited by the Access Bank Plc. That financial metamorphosis, which is a recurrent norm in the Nigerian banking firmament, accounts for its presence in Appeal No. CA/L/419/2019 and the absence or disappearance of its progenitor therefrom. In 2004, the Intercontinental Bank Plc granted a loan facility of N150 Million to the second appellant, at its behest, which was later declared as an Eligible Bank Asset by the Central Bank of Nigeria. The respondent purchased the said loan from the Intercontinental Bank Plc, an Eligible Financial Institution, on 31st December, 2010.

At this juncture, it is foremost to appreciate the connotation of a party in litigation. A party is a person by or against whom a legal action is sought and whose name is designated on the record as plaintiff or defendant, see Green v. Green (2001) FWLR (Pt. 76) 795; Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 494; Bello v. INEC (2010) 8 NWLR (Pt.1196) 342; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229. In law, parties encompass privies which are classified

into three: (1) Privies in blood (as ancestor and heir) (2) Privies in law (as testator and executor; intestate and administrator) and (3) Privies in estate (as vendor and purchaser, lessor and lessee), see Coker v. Sanyaolu (1976) 9-10 SC 203; Oyerogba v. Olaopa (1998) 12 SCNJ 115.
Thus, the right of the respondent, which germinated from the purchase, is well-rooted and protected in law. By the acquisition, the Intercontinental Bank Plc transferred or assigned all the second appellant’s assets, real, choses in action and liabilities to the respondent. In other words, it became a successor-in-title to the International Bank Plc and Access Bank Plc. A successor is one who takes the place of another by succession, see L.S.B.P.C v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82. The purchase gave birth to the relationship of privy in estate between the Intercontinental Bank Plc and the respondent. In the mind of the law, parties to an action embrace privies in estate, see Coker v. Sanyaolu (1976) 10 NSCC 566; Omoloye v. A. – G., Oyo State (1987) 4 NWLR (Pt. 64) 267; Balogun v. Adejobi (1995) 1 SCNJ 242; Adone v. Ikebudu (2001) 7 SCNJ

513; Oyerogba v. Olaopa (1998) 11 & 12 SCNJ 115. Abubakar v. B. O. & A. P. Ltd. (2007) 18 NWLR (Pt. 1066) 319; L. S. B. P. C. v. Purification Tech. (Nig.) Ltd. (2013) 7 NWLR (Pt. 1352) 82. In effect, the law, in its wisdom, has already crowned the respondent with the toga of a party in all the four actions on the footing of privy of estate.
My noble Lords, let me place on record, pronto, that the fact that Onyeke Edoka Dox and the first appellant do not appear as parties in all the four actions is of no moment. This is because addition or subtraction of parties in suits does not derogate, impinge or alter the sameness of parties in an action with multiple parties. This hallowed principle of law has received the blessing of the case-law in ex cathedra authorities, see Abubakar v. B.O & A.P Ltd. (2007) 18 NWLR (Pt. 1066) 319, Abiola & Sons Ltd. v. 7 up Bottling Co. Ltd. (2012) 15 NWLR (Pt. 1322) 184. The cardinal principle of law, which drowns the appellants’ stance on parties, constitutes a serious coup de grace in their case. This brief legal anatomy on parties, with due reverence, punctures the learned appellants’ senior

counsel’s alluring argument on party differentiation in the four actions. The lower Court paid due obeisance to the law when it proclaimed the parties to be identical. In endorse, in toto, that immaculate finding.

The appellants castigated the lower Court’s finding on the similarity of the subject matter, reliefs and issues in the four actions. I have, at the cradle of this judgment, catalogued the reliefs solicited by the appellants in their suit. It will be superfluous to replicate them here. The eleven verbose reliefs the second appellant supplicated in LD/52/2009 are pasted at pages 522 and 523, volume II, of the record. They are, also, incorporated in the paragraph 5 of the appellants’ pleadings in the suit. Due to their windy nature, it is pointless to display them here. The three reliefs in ID/256m/2008 are domiciled at page 491, volume II, of the record. I will, at the expense of prolixity, but borne out of necessity scoop them up, ipsissima verba, thus:
1. An order granting vacant possession of the premises referred to as Plot 871 Ozumba Mbadiwe Avenue to the 1st Claimant and an Order perpetually restraining the 1st &

2nd Defendants (by themselves or through their agents, staffs, privies, trustees or anyone acting through and in trust for them) from interfering with the 1st Claimant’s right to possession of the mortgaged premises through the appointed Receiver/Manager in the exercise of the powers conferred on the 1st Claimant under and by virtue of the Tripartite Deed of Legal Mortgage dated 5/12/2005 over all that property situate and lying being at Plot 871 Ozumba Mbadiwe Avenue, Victoria Island, Lagos and registered under Land Certificate Title No. LO 7481.
2. An order directing the appropriate authority of the Federal Republic of Nigeria, to wit: the Inspector -General of Police, the Commissioner of Police, Area Commanders, Divisional Police Officers and such other law enforcement agents or agencies to assist the 1st Claimant or its appointed Receiver/Manager to recover possession of the premises referred to as Plot 871 Ozumba Mbadiwe Victoria Island, Lagos and registered under Land certificate Title No. LO 7481.
3. And for such orders as this Honourable Court may deem fit to make in the circumstances.

I have married the pleadings and the reliefs

in the trinity actions. In a précis form, the prayers in ID/256m/2008 are for vacant possession and injunction on the property known as Plot 871 Ozumba Mbadiwe Avenue, Victoria Island, Lagos. In a nutshell, the claims in LD/52/2009 are for refund of excessive charges in the appellants’ loan, surrender/release of and injunction on the same property. The usury allegation owes its ancestry to the loan wherein the property, in a triumvirate agreement made between the second appellant, the first appellant’s father and the respondent’s predecessor-in-title, was the collateral and became a subject of legal mortgage of 5th December, 2005 as manifest in pages 475-485, volume II, of the record. The synopses of the import of the reliefs in the appellant’s suit, which parented the appeal, are damages and rents from the respondent. They are staked on the appellants’ allegation that the respondent’s occupation/possession of the selfsame property was unlawful because the interim order of mareva injunction that enabled it, which it obtained in Suit No. FHC/L/CS/1355/2012, was declared an abuse of Court process by this Court on 10th

March, 2017 in Appeal No. CA/L/336/2015.
It is decipherable from these extracts/resumes, that the reliefs in the three suits are pegged on the property lying and being at Plot 871 Ozumba Mbadiwe Avenue, Victoria Island, Lagos. On this score, the res, which is a recurring decimal in the four suits, is the same disputed property. The disputed property, perhaps due to its charm location and fiscal value, is a magnet for litigation. This is, amply, illustrated by the litany of cases revolving around it.
By the same token, it is deducible from the pleadings and reliefs, chronicled above, that the issues orbit around the disputation of repayment of the second appellant’s loan, inherited by the respondent, and ownership and possession of the property which was used as the security for it. My view is concretised by the ruling of the High Court, per Oyefeso, J., in Suit No. ID/256m/2008, wherein it ordered for a stay of proceedings in the suit pending the determination of the Suit No. LD/52/2009. The order, to all intents and purposes, put the suit in incubation throughout the gestation period of the latter -LD/52/2009- which is still pending in the

High Court of Lagos. In the realm of semantics and phraseology, the reliefs and issues are divergent, but with one confluence point which hides in their progeny. In the eyes of the law, the issues are the same in the sense that even though the wordings of the three sets of reliefs are different but the substance and end results are substantially the same, see Ministry for Works v. Tomas (Nig) Ltd. (2002) 2 NWLR (Pt. 752) 740; Alhaji Abba Mohammed Sani v. The President FRN (2019) Legalpedia (SC) 42611; PDP v. Sherrif (2017) 15 NWLR (Pt. 1588) 219. It is not the mandate of the law, that the issues must mirror themselves “like Siamese twins in feature and outlook”, see Abubakar v. B.O. & A.P Ltd. (supra) at 373, per Tobi JSC. In point of fact, the law is duly satisfied once the issues are substantially the same in their likeness among the actions.
It is, with due deference, really baffling, amazing and curious that the appellants are contending on the dissimilarity of the subject matter and issues. It will be recalled that the second appellant registered a stiff protest to the respondent’s Suit No. FHC/L/CS/1355/2012 with a preliminary

objection which, ultimately, favoured it in Appeal No. CA/L/336/2015 delivered on 10th March, 2017. In the grounds of that preliminary objection, which are factored into their present pleadings in extenso, it conceded to the oneness of the subject-matter and the claims. To now indulge in this converse position is akin to an unwarranted judicial somersault which constitutes a sworn enemy of the law. The law is usually loathe to decree anything in favour of such a slippery customer with a chameleonic character that approbates and reprobates in the same circumstance.
That is not all. The appellant’s suit, which culminated in the appeal, was instituted in the Federal High Court whilst Suit Nos. ID/256m/2008 and LD/52/2009 are pending in the High Court of Lagos State. The two are Courts of co-ordinate jurisdiction; one cannot make, set aside or vary the order of the other, seeCole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Eneh v. NDIC (2018) 16 NWLR (Pt. 1645) 355. The law roundly frowns on Courts of concurrent jurisdiction adjudicating over similar matters. In NIMB Ltd. v UBN Ltd. (2004) 12 NWLR (Pt. 888) 599 at 21 and 622, Pat-Acholonu, JSC (of the

blessed memory), graphically captured the rationalisation for that hallowed principle of law in these incisive and illuminating words:
“The theory of justice to which we adhere rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law. The beauty or what I might describe as the romance of law is that just as stare decisis exercises a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of co-ordinate jurisdiction do not sit on appeals on each other, attracts respect for the law.”
The foregoing evinces the doctrine of forum shopping. Forum shopping connotes “a rather reprehensible practice of choosing the most favourable territorial jurisdiction or Court in which a

matter or cause may be entertained and adjudicated upon”, Mailantarki v. Tongo (2018) 6 NWLR (Pt. 1614) 69. (supra) at 87, per Eko, JSC. The appellants’ suit was searching for a friendly and favourble Court. It exudes all the negative incidents of forum shopping and, ipso facto and de jure, a classic exemplification of it. Indubitably, the stigmatisation of the doctrine of forum shopping is now deeply propagated in our corpus juris. The case-law has, frontally, crucified, it see Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1; Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310; Ugo v. Ugo (2017) 18 NWLR (Pt. 1597) 218; Mailantarki v. Tongo (supra). There are ample justifications for its reprobation. It is a quintessence of prostitution in territorial jurisdiction and parades a galaxy of demerits in adjudication. It is a specie and one of the inglorious tentacles of abuse of Court process. It tends to diminish the public confidence in the judiciary and erodes its personal and institutional independence. It ranks among the whips and scorns of time. It exhausts finance, courage, hope and patience of litigants. Hence, the Courts, roundly, deprecate

it as an unholy judicial act.
For the sake of completeness, the Constitution, as amended, the fons et origo of our laws, donates to the appellants the right to ventilate their grievances in the Court of law. However, that right is subject to proper use lest it will be mired in the miasma of abuse of Court process. The appellants employed the judicial process improperly when they instituted Suit No. FHC/L/CS/1964/2017 to run pari passu with pending identical Suit Nos. ID/256M/2008 and LD/52/2009 on the same subject matter and issues against the respondent. The appellants’ conduct falls within the lean perimeter of mala fide. The reason is this. It projects sinister, dishonest and ill motive which is designed to mislead or deceive another, see Akaninwo v. Nsirim (2008) 9 NWLR (Pt. 1093) 439. The latest action (FHC/L/CS/1964/2017), which is a duplication/multiplication of the others, has its value in abrasions, irritations and annoyance to the respondent, the appellants’ adversary. In the sight of the law, the appellants intention/motive in proliferating the actions against the respondent is of no moment, see Saraki v. Kotoye (supra).

Interestingly, the law grants the Courts the unbridled licence, under their wide inherent powers, to scuttle any matter that is guilty of abuse of Court process, see O.S.I.E.C v. NCP (2013) 9 NWLR (Pt.1360) 451. In the province of abuse of Court process, an action that is later in time vacates the temple of justice, see Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224); A-G, Kwara State (2018) 3 NWLR (Pt. 1606) 266; Unifam Ind. Ltd. v. Ecobank (Nig.) Ltd. (2019) 1 NWLR (Pt. 1653) 187. An action that is trapped in the intractable nest of abuse of Court process is liable to dismissal without relistment, see Dingyadi v. INEC (No.1) (supra); In Re: Apeh (2017) 11 NWLR (Pt. 1576) 252; A-G, Kwara State v. Lawal (supra); Nwosu v. PDP (2018) 14 NWLR (Pt. 1640) 532; Ajaokuta Steel Co. Ltd. v. G.I. & S Ltd. (2019) 8 NWLR (Pt. 1674) 213. In the presence of these highlights, the appellants action is caught in the inescapable vortex of abuse of Court process.
In the light of this expansive juridical survey, done in due consultation with the law, the lower Court did not, in the least, fracture the law when it declared the appellants’ action, Suit No.

FHC/L/CS/1964/2017, as an abuse of Court process. The proclamation is unassailable. On this premise, all the excoriations, which the appellants invented and rained against it, are disabled from birth. It will smell of judicial sacrilege to tinker with a finding that has not insulted the law. In the end, I have no choice than to resolve the issue one against the appellants and in favour of the respondent.

Having dispensed with issue one, I proceed to settle issue two. The marrow of the issue is rebellious to equivocation. It queries the lower Court’s finding that the appellants’ suit is premature. The aftermath of issue one, dissected above, which has foreclosed the appellants’ reliefs in their action, renders this issue a footnote and otiose. The reason is not far-fetched. Flowing from the outcome of issue one, which affirmed the suit as an abuse of Court process, this issue two falls within the constricted four walls of an academic issue. In Plateau State v. A-G., Fed (2006) 3 NWLR (Pt. 967) 346 at 419, Tobi, JSC, incisively, explained the term, thus:
A suit is academic where it is merely theoretical, makes empty sound, and of no

practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity.
It is settled law, that a Court is drained of the necessary jurisdiction to adjudicate over academic disputes. This is so even if their determination will enrich the jurisprudential content of the law. Such academic questions are divorced from live issues which engage the adjudicative attention of the Courts, see A.-G., Anambra State v. A.-G., Fed. (2005) 9 NWLR (Pt. 931) 572; Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; FRN v. Borisade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2 NWLR (Pt. 1442) 103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva (2017) 10 NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343.
Flowing from this inelastic position of the law, the appellant’s issue two, to all intents and purposes, is rendered idle. Its resolution in favour of the appellant will

not advance, an inch, the chances of the success of the appeal. Nor will it, if found in favour of the respondent, erode the strength of its case on the appeal. Put starkly, its consideration by this Court, even if found in favour of the appellant or the respondent, will be of no judicial utilitarian value to either of them premised on the result of issue one. It is trite that Courts are not clad with the requisite jurisdiction to adjudicate over academic issues. In total fidelity to the law, I strike out the issue two for being an incompetent academic issue.

On the whole, having resolved the live issue one against the appellants, the fortune of the appeal is obvious. It is devoid of an tinge of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 2nd July, 2018. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read in draft, the lead judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA. The issue of abuse of Court process on

account of multiplicity of actions, which is at the pith of the appeal, has been punctiliously dealt with in His Lordship’s characteristic and trademark sapience and erudition. The manner of resolution of the said issue is in accord with my views.

Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties. I agree with the reasoning and conclusion that the appeal has no substance and merit and ought to be dismissed. I therefore join in dismissing the appeal for being bereft of any scintilla of merit. The decision of the Federal High Court, Lagos Division in Suit No. FHC/L/CS/1964/2017 delivered on 2nd July, 2018 is hereby affirmed. I abide by the consequential orders contained in the lead judgment.

BALKISU BELLO ALIYU, J.C.A.: I have had the privilege of reading in draft, the judgment of my learned brother Obande Festus Ogbuinya, JCA, just delivered.

His Lordship has adequately dealt with the live issue that arose for determination in this appeal in accordance with the tenets of the law and I am in total agreement with the reasoning and conclusion reached therein. I join him in dismissing this

appeal for want of merit. Appeal dismissed by me.
I abide by the order of no cost made in the lead judgment. Appeal dismissed by me.

Appearances:

Alade Agbabiaka, SAN with him, T. Jikenghan, Esq. For Appellant(s)

N.O. Balogun, Esq. For Respondent(s)