FIRST BANK OF NIGERIA LIMITED v. CHIEF ISAAC OSARO AGBARA & ORS
(2019)LCN/12769(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2019
CA/L/923CA/2018
RATIO
COURT AND PROCEDURE: CIRCUMSTANCES WHICH MAY AMOUNT TO ABUSE OF COURT PROCESSES
“Essentially, abuse of a Court process in any judicial proceedings depends and to be determined on the peculiar facts and circumstances of a case in which it is alleged or as may be determined by the Court itself. Judicial authorities provide guideline on some factors, situations or circumstances which may constitute an abuse of a Court process in a given case and include: – (a) When a party to a proceedings of Court improperly uses the issue of a judicial process to the irritation and annoyance of his opponent such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue. See Olutirin v. Agaka (1998) 6 NWLR (554) 366, Umeh v. Iwu (2008) 8 NWLR (1089) 225, NV SCHEEP V. MV S ARAZ (2001) FWLR (1934) 543, Ladoja v. Ajimobi (supra). (b) When a party/plaintiff files a notice of discontinuance so that he may have his way in a new suit. See Okafor v. A.G. Anambra State (1991) 6 NWLR (200) 659, Olawore v. Olanrewaju (1998) 1 NWLR (534) 436, Jonpal Limited v. Afribank (2003) 8 NWLR (822) 290. (c) When a party brings an action in a Court that has no jurisdiction to adjudicate over it. See Noah v. High Commissioner (1980) 8-11, SC, 100. (d) That abuse of a Court process is a term generally applied to a process which is wanting in bone fide and is frivolous, vexations or oppressive and is an abuse of legal procedure or improper use of a legal process which involves some deliberateness, malice, bias and desire to misuse, pervert or frustrate the course of justice in a case. Abuse of Court process may and can arise in a variety and infinite situations and circumstances in judicial proceedings. See Saraki v. Kotoye (supra), The Vessel Saint Roland v. Osinloye (1997) 4 NWLR, 387, Olutirin v. Agaka (supra), Lokpobiri v. Ogola (supra), N.I.M.B. v. UBN(2004) 12 NWLR (888) 599. (e) Where a party litigate again over identical question/s or issues which had already been decided against him. Onyeabuchi v. INEC (2002) 8 NWLR (769) 417 @ 443.” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
FIRST BANK OF NIGERIA LIMITED – Appellant(s)
AND
1. CHIEF ISAAC OSARO AGBARA
2. CHIEF VICTOR OBARI
3. CHIEF JOHN N. OGURU
4. CHIEF R.N. OGOSU
5. CHIEF GEORGE O. OSARO
6. CHIEF ADANTA OBELLE
(For themselves and on behalf of the Ancient “Onne Ejuma” stood in Council,Chiefs, Elders Men, Women and Children of Ejama-Ebubu Tai Eleme Local Government Area of Rivers State)
-JUDGEMENT CREDITORS/RESPONDENT
7. DR. ADESOLA ADEDUNTAN
8. MRS. IBUKUN AWOSIKA
-CONTEMNOR/RESPONDENTS – Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
The issues canvassed in this appeal, like Appeal No. CA/L/923C/18 have also been practically overtaken by the decision in Appeal No. CA/L/907C/18 by which the contempt proceedings against the Appellant therein were found to be a nullity in law for being conducted completely in his absence.
However, on the ground that this Court has the duty to consider all issues raised and placed before it by parties to an appeal and make pronouncement on their merit; See F.M.H v. CSA Limited (2009) 9 NWLR (1145) 193 @ 220-1, Ikpeazu v. Otti (2016) 8 NWLR (1513) 38, Dasuki v. FRN (2018) 10 NWLR (1627) 330 @ 343, PDP v. INEC (2018) 12 NWLR (1634) 533. I would dutifully proceed to do so in the appeal.
This appeal is from the dismissal of the Appellants motion filed on 28th March, 2018 for the dismissal of the 1st 6th Respondents motion for committal of the 7th and 8th Respondent for failure/refusal to honour a bank guarantee issued by the Appellant to secure an order for stay of execution of a money judgement against the SPDCN and others. The decision for the dismissal of the Appellants motion was contained in a Ruling delivered by the Federal High Court, Lagos (Lower Court) on the 6th June, 2018 in the committal proceedings initiated by the 1st 6th Respondents motion filed on the 19th March, 2018 and the appeal is premised on the Notice of Appeal filed on the 20th June, 2018, of eight (8) grounds.
In the Appellants brief filed on the 16th August, 2018, the following issues are said to arise for decision in the appeal
(i) Whether the lower Court was wrong when it dismissed appellants motion of 28/3/18 because its grounds were abusive of appellants earlier filed motion of 19/3/18, and which said decision was reached by the Lower Court suo motu. (Grounds 1, 2 and 8)
(ii) Whether the lower Court was not wrong to have failed to grant the prayers sought in appellants motion of 28/3/18. (Grounds 4, 5 and 6)
(iii) Whether the lower Court did not misconceive the case of the appellant and breach its right to Fair Hearing. (Ground 3)
As can readily be observed from the indication of the grounds of appeal from which the issues were distilled, ground 7 of the Notice of Appeal was left out of the issues and there is no indication that any issue was formulated from the said ground. By established principle of law on practice and procedure in the appellate Courts, a ground of an appeal from which no issue was distilled or formulated for determination in an appeal is deemed abandoned and liable to be struck out. J.E. Elukpo & Sons Limited v. F.H.A. (1991) 3 NWLR (179) 322, Bhojsons Plc v. Daniel Kalio (2006) 5 NWLR (973) 330.
It is not surprising that no issue was distilled from ground 7 of the Notice of Appeal which is a mere quotation of a review by the Lower Court of submissions by counsel made in the course of hearing of the motion in question and not a ratio decidendi in and for the decision appealed against. The law is that a ground of an appeal shall be a challenge to and be based on the ratio decidendi for the decision appealed against and that it is not every statement of Lower Court that can constitute a valid ground of appeal. Nwosu v. PDP (2018) 14 NWLR (1640) 532 @ 559, Leamie v. DPMS Limited (2005) 12 SC (Pt. 1) 93, M/V Da Qing San v. P.A.C. Limited (1991) 8 NWLR (209) 354, Saraki v. Kotoye (1992) 9 NWLR (264) 156. For being abandoned, ground 7 of the Notice of Appeal is struck out.
A sole issue was formulated in the 1st 6th Respondent brief filed on the 26th October, 2018 as follows: –
Whether considering the facts and circumstances of the case before the lower Court, it was proper to have dismissed the application of the Appellant. (Distilled from grounds 1, 2, 3, 4, 5, 6, 7 and 8 on the Notice of Appeal)
The Appellants Reply brief was filed on 31st October, 2018 in reaction to the 1st 8th Respondents brief of 26th October, 2018
On the 6th November, 2018, a Notice of Preliminary Objection (NPO) was filed by the 1st 6th Respondents to the appeal on the same grounds as the objection to the Appeal No. CA/L/923C/18.
The 7th and 8th Respondents did not file a brief of argument in the appeal.
Lists of the same Additional Authorities as in the aforenamed Appeal were also filed by the parties in this appeal.
This appeal and appeals No. CA/L/923C/18, CA/L/923CB/18, CA/L/923CC/18, CA/L/923CD/18. CA/L/923CE/18, CA/L/907C/18 AND CA/L/907CA/18 arose from the same facts of the committal proceedings initiated by the 1st 6th Respondent and the three (3) Rulings delivered by the Lower Court on the 6th June, 2018, in respect of the Appellants motions dated 19th March, 2018 and 28th March, 2018 as well as the 1st 6th Respondents motion for committal proceedings in reaction to which they were filed.
Deciding the 1st 6th Respondents NPO first, since I have decided the grounds upon which it is premised in the Appeal No. CA/L/923C/18, no useful and practical purpose would be served or achieved by mere repetition of the pronouncement on the reasons for my decision on the objection. It would suffice for me to adopt the same reasons for overruling the objection in Appeal No. CA/L/923C/18 for the NPO here which is also over-ruled.
On the issues for decision in this appeal, on the authority of Onochie v. Odogwu (2006) 6 NWLR (975) 65, Sha v. Kwan (2000) 8 NWLR (670) 685 @ 7000, Chabasaya v. Anwasi (2010) 10 NWLR (1201) 163 @ 181 and Governor, Ekiti State v. Olubunmo (2017) 3 NWLR (551) 1 @ 23, I intend to determine the appeal on the basis of the single issue of whether Lower Court is right that the Appellants motion of 28th March, 2018 constituted an abuse of its process in the proceedings before it.
Appellants Arguments:
The arguments of the Appellant on the issues raised in its brief are to the effect that the Lower Court raised the issue of abuse of its process suo motu before a review and consideration of the arguments preferred by the Appellant and thereby breached its right to fair hearing. Paragraph 1 of the Ruling by the Lower Court, Trade Bank Plc v. Chami (2003) 13 NWLR (836) 158 and Anuforo v. Obilor (1997) 11 NWLR (530) 661 @ 674 on effect of prejudicial statement by a Court in the course of reviews of cases presented by parties, Obumseli v. Uwakwa (2009) ALLFWLR (486) 1994 @ 2014, among others, on consequence of a Court raising an issue and deciding same suo motu without affording parties a hearing thereon, were referred to and it is argued that the Lower Court was wrong to have held that the motion was an abuse of its process and to have dismissed same. A Table of comparism between the motion and the one of 19th March, 2018 was set out in the brief to demonstrate that the grounds upon which the two (2) motions were premised, are different and do not constitute abuse of Court process. PDP v. Sheriff (2017) 15 NWLR (1588) 219 @ 265-6 on the basis of the rule on abuse of Court process and Okadigbo v. Chidi (No. 1) (2015) 10 NWLR (1466) 171 on the effect of breach of the right to fair hearing, were cited.
It is also argued that the Lower Court was wrong to have dismissed the Appellants motion without any formality contrary to the rules of Court and the Court is invited, on the authority of inter alia, Ihunwo v. Ihunwo (2013) 8 NWLR (1357) 550 @ 571 and Edilcon Nigeria Limited v. UBA Plc (2007) 18 NWLR (1596) 74 @ 159, to do what the Lower Court failed to do; to grant the Appellants motion and in conclusion, to allow the appeal.
1st 6th Respondent Arguments: –
Citing Banjo v. E.S.O.C & S (1975) LPELR-741 (SC), Dingyadi v. INEC (2011) LPELR-950 (SC) and Bukoye v. Adeyemo (2016) LPELR-40852 (SC), it is submitted that the Lower Court was right to have dismissed the Appellants motion for being an abuse of its process as it disclosed no reasonable basis in law and in fact and was mala fide.
It is contended that the motion was based on issues and facts contained and addressed in the 1st 6th Respondents motion for committal and the Appellants objection filed on 20th March, 2018, thus called on the Lower Court to make pronouncement on the substantive issues in the said processes, at an interlocutory stage; a situation not permitted by the law. Lokpobiri v. Ogola (2016) 3 NWLR (1499) 328 and Ladoja v. Ajimobi (2016) 10 NWLR (1516) 87 @ 156 on what constitutes an abuse of Court process were referred to and it is maintained that the Appellants motion constituted an abuse of the Lower Courts process.
It is contended that the invitation to the Court to consider and grant the Appellants motion is one calling on the Court to decide the subject of the Appeals CA/L/907C/16 and CA/L/923CE/18 between the same parties and so an abuse of the Court process itself.
The Court is urged to in conclusion, dismiss the appeal.
In the Appellants Reply brief, it is said that the 1st 6th Respondents did not in their arguments of the appeal, respond to all the arguments in the Appellants brief and so are deemed, on the authority of Nwankwo v. YarAdua (2010) 10 NWLR (1209) 578 @ 572, to have conceded the points canvassed.
Also, that the 1st 6th Respondents arguments on issues in the motion for committal and the Appellants objection of 19th March, 2018 do not arise from the Ruling by the Lower Court.
Now, the law recognizes and is firmly settled that the term abuse of Court process is one about which no hard and fast rule can be laid down as to the precise, specific and closed situations in which it would arise in all cases. Essentially, abuse of a Court process in any judicial proceedings depends and to be determined on the peculiar facts and circumstances of a case in which it is alleged or as may be determined by the Court itself. Judicial authorities provide guideline on some factors, situations or circumstances which may constitute an abuse of a Court process in a given case and include: –
(a) When a party to a proceedings of Court improperly uses the issue of a judicial process to the irritation and annoyance of his opponent such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue.
See Olutirin v. Agaka (1998) 6 NWLR (554) 366, Umeh v. Iwu (2008) 8 NWLR (1089) 225, NV SCHEEP V. MV S ARAZ (2001) FWLR (1934) 543, Ladoja v. Ajimobi (supra).
(b) When a party/plaintiff files a notice of discontinuance so that he may have his way in a new suit. See Okafor v. A.G. Anambra State (1991) 6 NWLR (200) 659, Olawore v. Olanrewaju (1998) 1 NWLR (534) 436, Jonpal Limited v. Afribank (2003) 8 NWLR (822) 290.
(c) When a party brings an action in a Court that has no jurisdiction to adjudicate over it. See Noah v. High Commissioner (1980) 8-11, SC, 100.
(d) That abuse of a Court process is a term generally applied to a process which is wanting in bone fide and is frivolous, vexations or oppressive and is an abuse of legal procedure or improper use of a legal process which involves some deliberateness, malice, bias and desire to misuse, pervert or frustrate the course of justice in a case. Abuse of Court process may and can arise in a variety and infinite situations and circumstances in judicial proceedings.
See Saraki v. Kotoye (supra), The Vessel Saint Roland v. Osinloye (1997) 4 NWLR, 387, Olutirin v. Agaka (supra), Lokpobiri v. Ogola (supra), N.I.M.B. v. UBN(2004) 12 NWLR (888) 599.
(e) Where a party litigate again over identical question/s or issues which had already been decided against him. Onyeabuchi v. INEC (2002) 8 NWLR (769) 417 @ 443.
In its Ruling on the motion, the Lower Courts reason or ratio decidendi for holding that it constituted an abuse of its process is contained in the 1st paragraph thereof set out in the Appellants brief. It is in the following terms.
Again, the Court read the Motion dated 23/8/18 and filed on even dated which is urging the Court to dismiss the application dated 19/3/18 and the grounds. The grounds suggest that the Motion is on abuse, this Court is on the opinion that the second motion filed, whilst the Motion dated 19/3/18 and filed on 20/3/18 is pending rather abusive in the light of the arguments proffered on Forms 48 and 49.
Put simply, the Lower Court was of the view that the motion of the Appellant for which arguments were canvassed on the Forms 48 and 49, was an abuse of its process whilst the earlier objection/motion dated 19th March, 2018 and filed on 20th March, 2018, was pending before it.
Apparently, both the motions filed on the 20th March, 2018 and on the 28th March, 2018 by the Appellant were preliminary objections raised by the Appellant against the 1st 6th Respondents motion of 19th March, 2018 for committal proceedings by which the competence of the proceedings and the jurisdiction of the Lower Court to entertain them. The two (2) motions sought the same relief of dismissal of the committal proceedings primarily predicated on the incompetence of the Forms 48 and 49 employed to initiate and commence the committal proceedings by the 1st 6th Respondents against the Appellant and the other Respondents; 7th and 8th Respondents.
Although the grounds for seeking the relief from the Lower Court were split and presented in separate installments in the two (2) motions/objections, as a legal strategy, the arguments canvassed for all of them are entirely, absolutely and completely based on the alleged incompetence of the Forms 48 and 49 used to initiate the committal proceedings.
The Lower Court had read the arguments canvassed on the grounds for the relief as presented in the Appellants Addresses in support of the respective motions/objections for it to see, know and form the opinion or view that the arguments on the motions/objections of 20th March, 2018 and of 28th March, 2018 were all preferred on Forms 48 and 49.
Even if the Lower Court did not in the Ruling on the Appellants motion of 28th March, 2018, review the arguments on the grounds for the relief sought on the record, the material and relevant arguments by the Appellant on the objection to the committal proceedings were fully reviewed and considered in the Rulings on the motion/objection of 20th March, 2018 and the 1st 6th Respondents motion of 19th March, 2018. In the circumstances, the question of the denial or breach of the Appellants right to fair hearing in the Ruling cannot properly be alleged and raised.
The grounds and issues raised in the Appellants two (2) motions/objections were the same and even if the Appellant had the right to challenge the committal proceeding by preliminary objection, the exercise of the right is not left to its whisms and choice of legal strategies, but is regulated by established principles, practice and procedure in judicial proceedings of a Court which prohibit the improper use or employment of a Court process to clog the smooth and expeditious administration of justice to the irritation and annoyance of an opponent and to overreach the Court by belabouring it with multiple processes on the same subject matter and issues.
In the above premises, the Lower Court was right to have summarily dismissed the Appellants motion/objection of 28th March, 2018 on the ground that the arguments canvassed therefor, are essentially the same as in the motion/objection of 20th March, 2018 and constituted an abuse of its process.
The above apart, I have in Appeal No. CA/L/923C/18, affirmed the Lower Courts Ruling on the Appellants motion/objection of 20th March, 2018 which has effectually, taken the wind out of the sail of the Appellants motion/objection of 28th March, 2018 and overtaken it, effectively.
In the final result, I find no merit in the appeal and dismiss it accordingly.
Consequently, the Ruling by the Lower Court delivered on the 6th June, 2018 in Appellants motion/objection of 28th March, 2018 is affirmed.
The 1st 6th Respondents are entitled to costs for prosecution of the appeal which are assessed at N500,000.00, in their favour and to be paid by the Appellant.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A., (Hon. P.J.).
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother MOHAMMED LAWAL GARBA JCA. I adopt the judgment as mine with nothing useful to add.
Appearances:
Chief W. Olanipekun, SAN, Dr. Onyechi Ikpeazu, SAN, Olabode Olanipekun, SAN and other Counsel on the list of Counsel submitted to the CourtFor Appellant(s)
Lucious E. Nwosu, SAN, R.A. Lawal-Rabana, SAN, K. L. Nzemanze, SAN, J.U.K. Igwe, SAN and other Counsel on the list of Counsel submitted to the Court for the 1st-6thRespondents/Judgement Creditors.
Emmanuel Uwadoka with him, A.U. Enyi and Etukudo, R.C. for the 7th and 8th Respondent
For Respondent(s)
