HONEYWELL FLOUR MILLS PLC v. ECOBANK NIGERIA LIMITED
(2019)LCN/13178(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of May, 2019
CA/L/1247/2015(1)
RATIO
ABUSE OF COURT PROCESS: WHETHER A PROCESS OF A PARTY CAN AMOUNT TO AN ABUSE OF COURT PROCESS
Happily, over the years authorities have become legion, as are replete in the law reports, providing some form of guide in carrying out the consideration whether or not an abuse of Court process has been occasioned by the process of a party. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156. See also Daniel V. FRN (2014) 8 NWLR (Pt. 1410) 570; Harriman V. Harriman (1989) 5 NWLR (Pt. 1199) 6; Ukachukwu V. PDP (2014) 4 NWLR (Pt. 1396) 65; CPC V. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (Pt. 1066) 319; Adesokan V. Adegorolu (1991) 3 NWLR (Pt. 179) 293; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225.PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
ABUSE OF COURT PROCESS: NATURE
The corollary to the above fluid state of uncertainty and imprecise definition of the term abuse of Court process is ironically the settled certainty that the factual situations or categories of facts or circumstances that may constitute or amount or give rise to abuse of Court process are never closed and therefore, has no exhaustive list thereof and thus would largely depend on the peculiar facts and circumstances of each case. See Ette V. Edoho (2009) 3 NWLR (Pt. 1144) 601 @ p. 609. See also PDP V. Obi (2009) 3 NWLR (Pt. 1128) 327 @ pp. 339 ? 340; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225; Benkay nig. Ltd. V. Cadbury Nig Plc. (2006) 6 NWLR (Pt. 976) 338.PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
ADMISSION: WHETHER A FACT ADMITTED BY ONE PARTY NEEDS TO BE PROVED BY THE OTHER
This has been the settled position of the law and this Court has always reiterated this position in a plethora of its judgment. See MTN Nigeria Communications Limited V. Mundra Ventures (Nig) Ltd. (2016) LPELR ? 40343 (CA), were this Court per Georgewill JCA., had reiterated inter alia thus:
The law is that any fact admitted by one party need not be proved by the other party, thus facts of which the parties do not dispute are taken as duly established and therefore, no onus lies on either party to further prove such facts on which the parties are agreed. See Smurfit Ltd V. M.V. Gongola Hope (2002) 22 WRN 30. See also Salano V. Olusanya & Ors. (1975) 1 SC 55; Balogun V. Egba Onikolobo Community Bank (Nig) Ltd. (2007) 5 NWLR (Pt. 1028) 584; Hon Zubairu & Anor. V. Iliasu Mohammed & Ors. (2009) LPELR ? 5124 (CA).?
See also Alagbe V. Abimbola (1978) 2 SC 39. See also Egbuna V. Egbuna (1989) 2 NWLR (Pt. 106) 773; Yahaya V. FRN (2007) 23 WRN 127.PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
COMPANY LAW: HOW TO PETITION FOR WINDING UP OF A COMPANY
This is the settled position of the law as was reechoed as well as reiterated in Tate Industries Plc V. Devcom MB Ltd (2004) 17 NWLR (Pt. 901) 200 @ p. 219, where it was held inter alia thus:
A Petition for Winding – Up of a company on the ground of inability to pay a debt must be distinguished from an ordinary claim for recovery of debt or that of breach of contract. The relief sought in a Winding-Up Petition is not one for recovery of debt or that of breach of contract but one for Winding-Up on account of insolvency or inability to pay debt.PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
HONEYWELL FLOUR MILLS PLC
(RC. NO. 55495) Appellant(s)
AND
ECOBANK NIGERIA LTD
(RC. NO. 89773) Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court, Lagos Division, Coram: M. N. Yunusa J., in Suit No. FHC/L/CP/1689/2015: Ecobank Nigeria Limited (RC. No. 89773) V. Honeywell Flour Mills Plc (RC. No. 55495), delivered 4/12/2015, in which Court below declined to vacate all the ex – prate orders it made against the Appellant and also declined to grant the Appellant?s application seeking to dismiss the Respondent?s Petition on ground of abuse of Court process.
?The Appellant, who was the Respondent in the Petition filed by the Respondent as Petitioner before the Court below, was thoroughly dissatisfied with the said ruling and had promptly appealed to this Court vide a Notice of Appeal filed on 14/12/2015 on nine grounds of appeal. The Respondent also filed a Notice of Cross Appeal against part of the said ruling on 9/12/2015 on three grounds of appeal. The Record of Appeal was duly transmitted to this Court. The Appellant?s brief was filed on 23/12/2015. The Respondent/Cross Appellant?s brief was filed on 22/1/2016. The
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Appellant?s Reply brief was filed on 1/2/2016. The Respondent/Cross Appellant?s Reply brief was filed on 17/2/2016.
At the hearing of this Appeal on 15/4/2019, Bode Olanipekun SAN learned Senior Advocate for the Appellant, appearing with Faith Adarighofua Esq., Chuba Obi – Okaro Esq., Mayowa Ajilaye Esq., and Olawunmi Shobola Esq., adopted the Appellant?s brief and Reply brief in respect of the issue of abuse of Court process as their arguments and urged the Court to allow the Appeal and set aside the ruling of the Court below and dismiss the Respondent?s Petition for being an abuse of the process of the Court below. On their part, O. A. Divine Esq., learned counsel for the Respondent, appearing with H. A. Atulukwu Esq., J. O. Bakare Esq., and M. I. Odejayi Esq., adopted the Respondent?s brief in respect of the issue of abuse of Court process and other issues he considered also as remitted to this Court by the Supreme Court in its judgment as their arguments and urged the Court to dismiss the Appeal and to affirm the ruling of the Court below.
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At the Court below, the Respondent as Petitioner had on 9/11/2015 commenced
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an action by way of a Winding-Up Petition against the Appellant as Respondent claiming the following reliefs, namely:
A. That Honeywell Flour Mills Plc with Registration No. 55495 be Wound Up by the Court under the provisions of Sections 409{1} and 410{1}{b} of Companies and Allied Matters Act, Cap C20 Laws of the Federation of Nigeria, 2004.
B. Or such other Order(s) may be made in the premise as this Honorable Court may consider just in the circumstance. See pages 5 – 12 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
On the part of the Appellant, the relevant facts are that on 6/8/2015, following disagreements between the parties and other sister companies to the Appellant, they had commenced an action against the Respondent in Suit No. FHC/L/CS/1219/2015: Anchorage Leisures Ltd & Ors V. Ecobank Nigeria and a order of maintenance of status quo by the parties was made. In response, the Respondent had filed its Statement of Defense. However, despite this pending suit between the parties, the Respondent proceeded to file a Winding – Up Petition against the Appellant on 16/10/2015 in Suit No. FHC/L/CP/1569/2015 along with a
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Motion Ex – parte seeking five orders against the Appellant, which application was refused by the Court below per J. T. Tsoho J., who had further directed the Respondent to put the Appellant on notice and subsequently adjourned the proceedings but instead of putting the Appellant on notice as directed, the Respondent filed on 9/11/2015 a subsequent Winding – Up Petition against the Appellant in Suit No. FHC/L/CP/1689/2015 over the same subject matter as in the earlier Petition along with another Motion Ex ? parte, which application was granted by the Court below per Yunusa J. Upon service, the Appellant filed a Motion on Notice on 24/11/2015 praying the Court below to discharge the Ex – parte orders and to also dismiss the second Petition on the grounds of abuse of Court process, amongst others, which application the Court below by its ruling delivered on 4/12/2015 declined to vacate all the Ex – parte orders and also refused to strike out and/or dismiss the Respondent?s Petition, hence the appeal to this Court against the ruling of the Court below. See pages 3 – 38, 39 – 47, 96 – 104, 179 – 211, 213 – 226, 246 – 249 and 250 – 269 of the Record of Appeal. ?
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On the other hand, on the part of the Respondent the facts relevant to this appeal are that the Respondent had commenced an action against the Appellant by means of Petition filed on 9/11/2015 claiming some reliefs. The Respondent also filed along the Petition applications Ex – Parte and on Notice to preserve the assets and funds of the Appellant pending the determination of the Petition. The fulcrum of the Respondent?s case is that colossal sums such as Import Finance Facility/Revolving Product Finance Facility and over draft facility were availed the Appellant by Legacy Oceanic Bank Plc which was acquired by the Respondent in 2011 with all its liabilities, right and obligations. Consequent to the acquisition and Appellant?s refusal to honor its obligation on the humongous credit facilities availed the Appellant, sometime around July 2013, Appellant through the Chairman of Honeywell Group Limited, one Oba Otudeko proposed the payment of the sum of N3.5 Billion for the Appellant and on behalf of Appellant?s related companies at which time same was summed to be about N5.5 Billion. The proposal to pay the sum of N3.5 Billion was
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accepted on certain conditions, part of which was to pay N500 Million immediately and the remaining balance before CBN Examiners leave the Bank on inspection by the end of August 2013 as it was evident in the letters exchanged between the parties on 22/7/2013.
However, the Appellant defaulted in strict compliance with the concession granted and subsequently terminated the spirit of the ?Olive branch? extended to it in the repayment of its indebtedness under the concession granted on 22/7/2013. Subsequently, the bullet and staggered repayment of indebtedness as suggested by the Appellant?s representative, the Chairman of Honeywell Group Nigeria Limited, Oba Otudeko on behalf of the defaulting related companies became the subject of further discussions between the representatives of the Respondent and Appellant. However, instead of liquidating its indebtedness, the Appellant through its representative kept introducing proposal upon proposal for the acceptance of N3.5 Billion in terms of dishonored concession granted as full and final settlement of its indebtedness, which proposal became unacceptable to the Respondent, following a board
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meeting which rejected the offer. The Appellant made several attempts to frustrate the recovery of third party?s funds trapped in its labyrinth including submitting complaint to Bankers? Committee, Sub-Committee on Ethics & Professionalism and instituting Suit No. FHC/L/CS/1219/2015 at the Court below per Idris J.
It is also the case of the Respondent that while the former complaint in the suit was allegation of full liquidation of indebtedness, the claim in the subsequent suit was for specific performance of an alleged ?in principle agreement? of 22/7/2013 and that the claim of the Appellant in Suit No. FHC/L/CS/1219/2015 borders on implementation/binding nature of correspondence exchanged between the parties on 22/7/2013 and therefore, the order made in that suit by the Court below was one for maintaining status quo ante bellum between the parties. However, the Respondent having been exposed to scrutiny by the Central Bank of Nigeria and other statutory bodies initiated instant Petition against the Appellant. Further demands by Respondent of outstanding indebtedness have been stifled by Appellant?s inability to
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liquidate its exposures to the Respondent, which in effect necessitated the Petition for Winding-Up with the applications for Interim/Interlocutory reliefs respectively filed by the Respondent to preserve the assets and funds of the Appellant pending the appointment of a provisional Liquidator and the hearing of the Petition by the Court below. On 18/11/2015, the Court below granted the interim orders geared toward preserving the assets/funds of the Appellant.
However, upon service of the interim orders, the Appellant had approached the Court below to discharge the said interim orders but in its considered ruling delivered on 4/12/2015 the Court below declined to vacate all the interim orders but rather varied the said orders to allow the Appellant have access to sum of N15, 000, 000. 00 per week for the running/overhead expenses whilst suspending its order of advertisement of the petition for winding-up, hence the appeal by the Appellant and cross appeal by the Respondent. See pages 5 – 12, 18 – 29, 39 – 70, 87 – 89 and 96 – 116 of the Record of Appeal.
My Lords, this appeal has had a chequered history in its journey through all the strata of
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superior Courts in this land. The appeal was originally heard by this Court and in the judgment delivered on 30/3/2016, this Court had set aside the ruling of the Court below delivered on 4/12/2015 in which the Court below declined to vacate or discharge all the interim ex ? parte orders it made but rather varied them by allowing the Appellant access to withdraw the sum of N15,000,000.00 per week for the running/overhead expenses and also suspended the order for advertisement of the Petition for winding up but dismissing the Appellant?s application to dismiss the Respondent?s Petition on grounds of abuse of Court process. Both parties were dissatisfied with the judgment of this Court and, as allowed them by law, had proceeded on further appeal to the Supreme Court in SC. 401/2016 and SC. 402/2016. While in Appeal No. SC. 402/2016, the Supreme Court delivered its judgment on 13/7/2018 per Okoro JSC., dismissing the Respondent?s appeal, on the other hand, in Appeal No. SC. 401/2016, the Supreme Court delivered its judgment on 13/7/2018 per Sanusi JSC., allowing the Appellant?s appeal and remitted the issue of abuse of Court
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process to be heard and determined by this Court.
However, on 15/4/2019 at the hearing of the issue remitted to this Court for determination arguments arose on whether or not issue four in the Respondent/Cross Appellant?s brief forms part of the issue remitted by the Supreme Court to this Court for hearing and determination. On the one hand, the learned counsel for the Respondent/Cross Appellant had at the re – hearing of part of this appeal by this Court as directed by the Supreme Court in its judgment delivered on 13/7/2018 in SC.401/2016:Honeywell Flour Mills Plc V. Ecobank Nigeria Limited (Unreported) contended that Respondent/Cross Appellant?s issue four remained extant for consideration and determination in this re – hearing of part of this appeal. On the other hand, the learned Senior Advocate for the Appellant/Cross Respondent had countered the contention of the learned counsel for the Respondent/Cross Appellant and had contended that issue four in the Respondent/Cross Appellant/s brief had been duly considered and resolved by this Court in its judgment delivered on 30/3/2016 and upheld by the Supreme Court in its judgment delivered
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on 13/7/2018 in Appeal No. SC. 402/2016.
My Lords, in the light of the foregoing contentions, it is incumbent on this Court to first and foremost resolve these conflicting contentions of the parties to determine whether issue four in the Respondent/Cross Appellant?s brief is still extant and form part of the issues remitted to this Court by the Supreme Court for determination.
I have taken time to read through the judgments of the Supreme Court in Appeal No. SC. 401/2016 and Appeal No. SC. 402/2016 in relation to issue four in the Respondent/Cross Appellant?s brief and have also considered the divergent contentions of the parties and I think the most appropriate thing to do in the resolution of these divergent contention is to hear from the horse?s mouth as to what the Supreme Court decided or did not decide in its said judgments. I proceed to do so anon!
In the judgment of the Supreme Court delivered on 13/7/2018 in Appeal No. SC.402/2016, at page 12 the following was set out as issue five in the brief of the Appellant therein, which is the Respondent/Cross Appellant in this appeal to wit:
?Whether the Court of
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Appeal was right to strike out the Appellant?s Cross Appeal solely on the grounds that the granting of prayer 1 of the Respondent?s Motion on Notice at the Lower Court dated the 23rd day of November, 2015 by the Court of Appeal made the sole issue submitted in the Cross Appeal a moot point
On the above issue five, at pages 60 ? 65 of the judgment of the Supreme Court, his Lordship, Okoro JSC., had reasoned and held inter alia thus:
?Appellant?s compliant in this issue is whether the Court of Appeal was right to strike out the Appellant?s Cross AppealThe sole issue the Appellant herein submitted for determination in the Cross Appeal before the Court of Appeal was:- ?Whether the Lower Court was right to have dismissed the Cross Appellant?s Notice of Preliminary objection without resolving issue of abuse raised therein and inspite of the existence of from 49 filed in FHC/L/CS/1219/2015 brought to its attention.I agree entirely with the decision of the Court below on the issue. Having resolved the main issue in controversy in the appeal and the ex – parte orders
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granted by the trial Court set aside, there was nothing left to be said again in the appeal except to engage in an academic exercise. Courts are not set up to engage its precious judicial time in academic exercise? In summary therefore, since the main issue was decided, the lone issue in the Cross Appeal could not add to or subtract from the decision in the main appeal. I agree that the Court below was right in the circumstances to strike out the Cross Appeal. This issue is accordingly resolved against the Appellant.?
Now, issue four in the Respondent/Cross Appellant brief of which it was contended by the learned counsel for the Respondent is extant is as follows:
?Whether the lower Court was right to have dismissed cross Appellant?s Notice of Preliminary Objection without resolving issue of abuse raised therein and inspite of the existence of FORM 49 filed in FHC/L/CS/1219/2015 brought to its attention
My Lords, having read through the part of the judgment of the Supreme Court relevant to the issue in contention whether or not issue four in the Respondent/Cross Respondent brief is extant and formed part of the
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issues remitted by the Supreme Court in its said judgment to this Court for hearing and determination, I am not in the least persuaded by the contention of the learned counsel for the Respondent/Cross Appellant that issue four in the Respondent/Cross Appellant?s brief is extant and forms part of the issues remitted by the Supreme Court in its said judgment to this Court for determination in this appeal. I am rather completely satisfied with and accept as correct the contention by the learned Senior Advocate for the Appellant/Cross Respondent that the said issue has been duly considered and resolved both by this Court in its judgment delivered on 30/3/2016 and affirmed by the Supreme Court in its judgment delivered on 13/7/2018. That settles it and it is in public interest that there must be an end to needless litigation particularly on issues already decided with finality by the apex Court in the land.
Having therefore cleared the coast, it is time to sail to the real and only extant issue in this appeal, which is issue three in the Appellant?s brief, as remitted by the Supreme Court to this Court for determination, namely:
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SOLE ISSUE
?Considering the facts and circumstances of the case before the lower Court, whether the said Court was not wrong in failing to treat the suit before it as an abuse of court process.?
APPELLANT?S COUNSEL SUBMISSIONS
On his issue three, learned Senior Advocate for the Appellant had submitted that in law, an abuse of Court process occurs where a party uses the process of Court mala ? fide and contended that despite the fact that situations which may give rise to abuse of Court process are inexhaustible, there is a consensus that at the core of this reprehensible and depreciable concept and practice is a situation where a party subjects the judicial process to actions that are lacking in bona – fide, particularly the deployment of the legal process and machinery by a party to irritate an adversary in Court usually manifesting in seeking the achievement of the same goal in multiple Courts either directly or indirectly and urged the Court to hold that the institution of two Suits against the Appellant by the Respondent over the same subject matter and issues before the Court below clearly constituted an abuse of Court
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process for which the later suit ought to have dismissed by the Court below, which failed in its duty so do to. Learned Senior Advocate relied on Ojo V. Olawore (2008) 6 – 7 SC (Pt. 2) 54; NIMB V. UBN Ltd (2004) 12 NWLR (Pt. 888) 599; Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156; Agwasim V. Ojichie (2004) 10 NWLR (Pt. 882) 613 @ pp. 622 – 623.
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It was also submitted that on the facts and circumstances of this appeal as shown in the printed record it was clear that the Petition filed by the Respondent 9/11/2015 is abusive of the earlier Petition filed by the same Respondent on 16/10/2015 as well as the Suit filed by the Appellant on 4/8/2015 and contended that both Petitions filed by the Respondent against the Appellant were in respect of the same subject matter and same issues arising from the alleged indebtedness of the Appellant to the Respondent and urged the Court to hold that since a determination of any of the earlier suits filed over the same subject matter would finally determine the rights and liabilities of the parties, the subsequent Petition filed by the Respondent on 9/11/2015 over the same subject matter clearly constituted an abuse of
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Court process amend and therefore, liable to be dismissed in limine and prayed the Court to allow the appeal and dismiss the Respondent?s Petition in order to halt the continued abuse of the process of the Court below by the Respondent. Learned Senior Advocate relied on Okorodudu V. Okoromadu (1977) 3 SC 21; Dingyadi V. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 154 @ p. 221; Ogoejeofo V. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205; Victor Umeh V. Maurice Iwu (2008) 8 NWLR (Pt. 1089) 225 @ pp. 243 ? 244; Dingyadi V. INEC (No. 2) (2011) 10 NWLR (Pt. 1255) 347 @ p. 390; Arubo V. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 @ p. 142; Adesanoye V. Adewole (2000) 9 NWLR (Pt 671) 127 @ p. l52.
RESPONDENT?S COUNSEL SUBMISSIONS
On his issue three, dealing with the extant issue of abuse of Court process, learned counsel for the Respondent had submitted that the Appellant unsuccessfully argued that the Respondent?s Petition, before the Court below was an abuse of Court process relying on the authority of Agwasim V. Ojichie (Supra) and contended that from the facts and circumstances of this appeal the instant Petition before the Court below is not an abuse
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of Court process in that the Respondent did not institute the action in Suit No. FHC/L/CS/1219/2015 neither does it maintain any counter – claim in the said Suit to warrant the argument by the Appellant that the present Petition constitutes an anise of Court process and urged the Court to discountenance the arguments of the Appellant to that effect and to dismiss the appeal for lacking in merit on the issue of abuse of Court process.
It was also submitted that the suits were not instituted over the same subject matter contrary to the contentions of the Appellant in that while Suit No. FHC/L/CS/1219/2015 is patently predicated on the subject matter of the 22/7/2013 agreement by three defaulters the instant Petition is to wind up the Applicant for its inability to pay up its debt and contended that the subject matter of both suit are therefore, not the same to warrant the invocation of the principle of abuse of Court process against the Respondent?s Petition against the Appellant and urged the Court to hold that the Petition filed by the Respondent on 9/11/2015 against the Appellant for its winding – up on account of its inability to pay its to the
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Respondent did not constitute an abuse of Court process and to dismiss the appeal. Counsel relied on Tate Industries Plc V. Devcom MB Ltd (2004) 17 NWLR (Pt. 901) 200 @ p. 219.
It was further submitted that in the instant appeal the precondition of instituting different action between same parties simultaneously for the invocation of the principle of abuse of Court process is absent in that there is no counter – claim by the Respondent in Suit No. FHC/L/CS/1219/2015 filed by the Appellant and two other parties against the Respondent on 4/8/2015 for specific performance and declaration that the Appellant is debt free as distinct from Suit No. FHC/L/CP/1689/2015 for winding – up of the Appellant and contended that in the circumstances therefore, there are no two suits are pending before Court below against the same parties for same purpose even if on different grounds as could warrant the invocation of the principle of abuse of Court process and urged the Court to so hold and to discountenance the issue of abuse of Court process and to dismiss the appeal for lacking in merit, more so when Suit No. FHC/L/CP/1569/2015: Ecobank Nigeria Limited V. Honeywell
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Flour Mills Plc has been discontinued vide a Notice of Discontinuance filed on 9/11/2015 and contained at pages 371-372 of the Record of Appeal. Counsel relied on Ogunkunle V. Eternal Scared Order C & S {2001}12 NWLR (PT. 727) 359.
APPELLANT?S COUNSEL REPLY SUBMISSIONS
In his reply, learned Senior Advocate had submitted that the Respondent having not denied filing two Petition simultaneously over the same subject matter against the same Appellant before the Court below cannot be allowed to trivialize the issue of abuse of Court process as a wasted effort and contended that a look at the alleged notice of discontinuance as purportedly filed on 9/11/2015 shows that it was filed on the same date the offending and abusive subsequent Petition was filed on 9/11/2015 and urged the Court to hold that the situation of abuse of Court process was worsened by the fact that the Respondent had to file a notice of discontinuance in a case where its prayers for Ex -parte orders were refused by one Judge of the Court below so as to file the same case in another Court on the same day before another judge of the same Court below in order to have its way with
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the grant of the same Ex – parte orders earlier refused by the other judge. Learned Senior Advocate relied on Olawore V. Olanrewaju (1998) 1 NWLR (Pt. 534) 436.
RESOLUTION OF SOLE ISSUE
My Lords, the crucial question begging for answer in the consideration of the sole issue is simply this: whether on the state of the facts and processes filed before the Court below the Respondent?s Petition filed on 9/11/2015 against the Appellant constituted an abuse of Court process and ought to have been dismissed by the Court below?
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On 4/8/2015, following irreconcilable differences between the parties including the sister companies to the Appellant, the Appellant jointly with its sister companies commenced an action as Claimants against the Respondent as Defendant in Suit No. FHC/L/CS/1219/2015: Anchorage Leisures Ltd & Ors V. Ecobank Nigeria Ltd claiming some reliefs against the Respondent. Upon service the Respondent duly filed its Statement of defense and the suit is still pending before the Court below per Idris J. (as he then was). However, on 16/10/201, the Respondent commenced an action by way of winding up Petition against the Appellant
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in Suit No. FHC/L/CP/1569/2015: Ecobank Nigeria Ltd. V. Honeywell Flour Mills Plc claiming some reliefs against the Appellant before the Court below per Tsoho J. Curiously, the Respondent despite the pendency of the above two suits between the parties and their privies, commenced yet another action by way of winding up Petition against the Appellant in Suit No. FHC/L/CP/1689/2015: Ecobank Nigeria Ltd V. Honeywell Flour Mills Plc claiming the same reliefs against the Appellant and this latter suit is pending before the Court below per Yunusa J.
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Interestingly, while the Court below per Tsoho J., had declined to grant the interim Ex – parte orders sought by the Respondent against the Appellant in the earlier Suit No. FHC/L/CP/1569/2015: Ecobank Nigeria Ltd. V. Honeywell Flour Mills Plc, the same interim Ex ? parte orders were readily granted by the Court below per Yunusa J. in the subsequent Suit No. FHC/L/CP/1689/2015: Ecobank Nigeria Ltd V. Honeywell Flour Mills Plc also commenced by the Respondent against the Appellant. More interestingly is the fact all these subsequent two suits filed by the Respondent against the Appellant were both filed while
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there was already in existence an earlier order of the Court below made on 10/8/2015 requiring both parties to maintain the status quo pending the determination of Suit No. FHC/L/CS/1219/2015: Anchorage Leisures Ltd & Ors V. Ecobank Nigeria Ltd.
The above scenario then set the stage for the seemingly epic legal battle that has seen the parties through all the strata of the superior Courts in the land and now back to the penultimate appellate Court in the land in what could easily be regarded as a second missionary journey and we cannot but welcome the parties once against since it was the apex Court that had so directed them.
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I have taken time to peruse the claims, averments and entire contents of Suit No. FHC/L/CP/1569/2015 filed on 16/10/2015 and Suit No. FHC/L/CP/1689/2015 filed on 9/11/2015 by the Respondent against the same Appellant and it is beyond any dispute that both suits are not only over the same subject matter of winding up of the Appellant on grounds of its inability to meet its financial indebtedness to the Respondent but they are also the same in the claims, averments and contents word for word and paragraph by paragraph. See
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pages 5 – 12, 39 – 41, 42 – 47, 71 – 74, 79 – 186 and 213 – 221 of the Record of Appeal.
It was in the above circumstances and facts that the Appellant had approached Court below per Yunusa J., by way of a Motion of Notice praying for the following reliefs namely:
1. An Order discharging and/or vacating the interim orders of injunction granted by this Honorable Court in favor of the Petitioner/Respondent on 18/11/2015.
And/or
2. An Order dismissing and/or striking out this Petition.
3. The alternative to (2) ABOVE, an Order staying proceedings in this Suit for reference of the dispute between the parties to arbitration.
The Appellant had relied on several grounds for the said application including inter alia the following grounds, to wit:
iv. In view of a disagreement between the applicant and the respondent as to the complete liquidation of its outstanding obligations to the respondent, the Respondent and the applicant with two other parties are currently engaged in dispute resolution proceedings in SUIT NO: FHC/L/CS/1219/2015 – Anchorage Leisures Ltd & 2 Ors V. Ecobank Nigeria Ltd pending before Idris J.
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of this Honorable Court.
v. Issues have been joined by both parties in SUIT NO: FHC/L/CS/1219/2015 with the filing of pleadings.
vi. Interlocutory orders for the maintenance of status quo in Suit No. FHC/L/CS/1219/2015 have been made and are currently subsisting.
vii. Suit No. FHC/L/CS/1219/2015 was filed first in time before this Honorable Court.
viii. Annexure 1 attached to the current Petition and upon which the entire Petition is based provides for dispute resolution vide arbitration.
ix. This current Suit is an abuse of Court process. See pages 79 ? 82 of the Record of Appeal.
In the affidavit in support of the application by the Appellant deposed to by one Kemi Owasanoye, Head of Finance and Treasury of the Appellant, it was stated inter alia as follows:
7. Further to the foregoing, I know as a fact that:
iv. In view of the fact that, irrespective of applicant?s full payment of the sum agreed in settlement of the indebtedness, the respondent still insisted that the applicant was still indebted to it, and refused to carry out the agreed terms, the applicant and its sister companies instituted SUIT
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NO: FHC/L/CS/1219/2015: Anchorage Leisures Ltd & 2 Ors V. Ecobank Nigeria Ltd. Now shown to me, attached herewith and marked Exhibits HFM/E 4 and 5 are a letter dated November 14, 2014 showing respondent?s insistence that applicant was still indebted to it despite full liquidation of its indebtedness and the originating processes in SUIT NO: FHC/L/CS/ 1219/2015.
v. On 6/10/2015, the Respondent filed its Statement of Defense in Suit No. FHC/L/CS/1219/2015. Now shown to me, attached herewith and marked Exhibit HFH/E 6 is the said Statement of Defense.
vi. Further to (v) above, in Suit No. FHC/L/CS/1219/2015, the Respondent, on 8/9/2015 and 9/10/2015, the Respondent filed objection to Suit No. FHC/L/CS/1219/2015 arguing that the Federal High Court lacks jurisdiction to entertain any dispute between it and the Applicant since according to it, there was no banker/customer relationship between both parties and also that there was no privity of contract between them. Now shown to me, attached hereto and marked as Exhibits HFM/E 7 and 8 are a copy each of the processes dated 8/9/2015 and 9/10/2015 respectively.
Vii. Suit No.
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FHC/L/CS/1219/2015 came up on 29/9/2015 and counsel to the Respondent therein informed the Court that the Respondent was a responsible corporate citizen that would not act to impugn existing orders of Court in that suit as well as the pendency of that suit.
Viii. On 23/10/2015, the Respondent argued the application in Exhibits HFM/E 7 and 8 in Suit No. FHC/L/CS/1219/2015 and still insisted that there was no banker/customer relationship and privity between the Applicant and the Respondent. Ruling on the said application has been reserved till 11/12/2015.
ix. After the filing of Exhibits HFM/E 7 and 8, the Respondent, on 16/10/2015 filed a Petition dated 16/10/2015, in Suit No. FHC/L/CP/1569/2015: Ecobank Nigeria Ltd V. Honeywell Flour Mills Plc before this Honorable Court against me terms, word for word with the current Petition herein and same was assigned to Tsoho J of this Honorable Court. Now shown to me, attached hereto and marked as Exhibit HFM/E 9 is a certified true copy of the Petition with all the attached processes including a Motion Ex-parte seeking orders in exact terms as those granted by this Honorable Court on 18/11/ 2015. Now shown
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to me, attached hereto and marked as Exhibit HFM/E 9 is a certified true copy of the complete processes filed therein.
x. In Exhibit HFM/E 9 filed after the filing of Exhibits HFM/E 7 and 8 and before arguments on the said Exhibits HFM/E 7 and 8, the Respondent stated that the Applicant was a customer of Oceanic Bank Plc which was acquired by it in September, 2011 and that by virtue of the acquisition, the Applicant had obligators to it.
xi. Despite the facts in (x) supra, on 23/10/2015, the Respondent still adopted the processes in Exhibits HFM/E 7 and 8 in Suit No. FHC/L/CS/1219/2015 and insisted that there was no banker/customer relationship and privity between it and the Applicant.
xii. I know as a fact that Suit No: FHC/L/CP/1569/2015 is exactly repetitive of this Petition.
x. Further to (xii) above, I know as a fact that it was only after Tsoho J., of this Honorable Court refused the Ex-parte orders sought for in Suit No: FHC/L/CP/1569/2015 that the Respondent flied this present Petition and obtained exactly the same Ex – parte orders that were earlier refused by Tsoho J.
xiv. I further know as a fact that the same
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documents in issue in FHC/L/CS/1219/2015 are those in this present Suit.
xv. Further to (xiv) above, I further know as a fact that it is the same facts to be decided in Suit No. FHC/L/C5/1219/2015 that form the basis of this suit.
xvi. Further to (xv) above, I know as a fact that, in Suit No: FHC/L/CS/1219/2015, this Honorable Court made interim interlocutory orders on 10/8/2015 directing all parties to maintain the status quo ante bellum. Now shown to me, herewith and marked as Exhibit HFM/E 10 is a certified true copy of the said order.
xvii. Further to (xvi) supra, Exhibit HFM/E 10 is still pending and it was partly due to the existence of same that the Respondent?s counsel gave the undertaking which he gave in open Court on 29/9/2015 referred to in paragraph (vii) above.
xix. I know as a fact that the Ex – parte orders granted by this Honorable Court on 18/11/2015 are in conflict with the earlier Ex – parte orders granted by this Honorable Court in Suit No. FHC/L/CS/1219/2015 on 10/8/2015. See pages 82 – 86 of the Record of Appeal
?
The Appellant and its sister company had filed a Suit on 4/8/2015 against the Respondent
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claiming the following reliefs:
a. A Declaration that the Plaintiffs (as customers), by the agreements reached at the meetings of 22/7/2013 and 12/12/2013 with the Defendant (as banker to the Plaintiffs) are not indebted to the Defendant in any amount apart from the agreed sum of N3,500,000,000.00 as full and final settlement/liquidation of their indebtedness.
b. A Declaration that the Plaintiffs, having paid the sum of N3,500,000,000.00 to the Defendant as full and final liquidation of their indebtedness as agreed, the Plaintiffs have performed all their repayment obligations in respect of the said indebtedness.
C. A Declaration that the Plaintiffs, having fully performed their repayment obligations by the payment of the sum of 3, 500,000.000.00 to the Defendant, the Plaintiffs are entitled to
iv. The issuance of letter of discharge from indebtedness from the defendant.
v. A release of all the securities, for which the already liquidated indebtedness was collateralized.
vi. An update of the status of Plaintiffs? accounts on the Central Bank of Nigeria?s Credit Risk Management System (CRMS) Portal from non
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performing loan accounts.
d. An Order mandating the Defendant to forthwith issue Letters of Discharge from indebtedness to the Plaintiffs.
e. An Order mandating the Defendant to release to the Plaintiffs, all the collateral used to secure the already liquidated indebtedness to the defendant.
f. An Order mandating the defendants to update the Plaintiffs accounts on the Central Bank of Nigeria?s CRMS Portal from non-performing loan accounts.
g. An Order of Perpetual Injunction restraining the Defendant, either by itself, its directors. Employees, privies, assignees, successors – in – title or anybody acting on their behalf, from making any representation in any form, to any third party suggesting, indicating and/or implying that any of the Plaintiffs debtors, their directors, parent company and/or subsidiaries is/are indebted to it in any way.
h. Cost of this action assessed at N100, 000, 000.00. See pages 96 – 104 of the Record of Appeal.
The Respondent as Defendant duly filed its Statement of Defense to the above Suit filed by the Appellant and its sister companies as Plaintiffs. See pages 117 – 128 of the Record of
31
Appeal.
My Lords, it is in the light of the above facts and circumstances and the decisions of the Court below in its ruling of 4/12/2015 declining to grant application of the Appellant to dismiss the Respondent?s Petition that I shall consider the question whether the Respondent?s Petition in Suit No. FHC/L/CP/1689/2015: Ecobank Nigeria Ltd V. Honeywell Flour Mills Plc filed on 9/11/2015 constituted an abuse of Court process as vehemently contended by the Appellant or did not constitute an abuse of Court process as equally vehemently contended by the Respondent.
Now, the term ?abuse of Court process? is often seen to be synonymous with multiplicity of suits, but though that in a way is a correct proposition of the law, yet abuse of Court process is much more than mere multiplicity of suits. In other words, multiplicity of suits is not the only way by which abuse of Court process could be constituted. Simply put, and for lack of a precise or concise definition, the term ?abuse of Court process? denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to
32
the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise or concise definition. This is rightly and arguably so because what would constitute or amount to abuse of Court process is very diverse, imprecise and thus subject to infinite or indefinite considerations.
In considering whether or not an action constitutes an abuse of Court process, the Court is to critically consider the peculiar facts and circumstances of each case in which the issue of abuse of Court process is raised to determine whether in the peculiar circumstances of the affected case, the act of the party complained of constitutes an abuse of court process. Happily, over the years authorities have become legion, as are replete in the law reports, providing some form of guide in carrying out the consideration whether or not an abuse of Court process has been occasioned by the process of a party. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156. See also Daniel V. FRN (2014) 8 NWLR (Pt. 1410) 570; Harriman V. Harriman (1989) 5 NWLR (Pt. 1199) 6; Ukachukwu V. PDP (2014) 4 NWLR (Pt. 1396) 65; CPC V. Ombugadu (2013) 18
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NWLR (Pt. 1385) 66; Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (Pt. 1066) 319; Adesokan V. Adegorolu (1991) 3 NWLR (Pt. 179) 293; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225.
The corollary to the above fluid state of uncertainty and imprecise definition of the term ?abuse of Court process? is ironically the settled certainty that the factual situations or categories of facts or circumstances that may constitute or amount or give rise to abuse of Court process are never closed and therefore, has no exhaustive list thereof and thus would largely depend on the peculiar facts and circumstances of each case. See Ette V. Edoho (2009) 3 NWLR (Pt. 1144) 601 @ p. 609. See also PDP V. Obi (2009) 3 NWLR (Pt. 1128) 327 @ pp. 339 ? 340; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225; Benkay nig. Ltd. V. Cadbury Nig Plc. (2006) 6 NWLR (Pt. 976) 338.
In the instant appeal, I have looked at and considered the entirety of the processes filed before the Court below, including the claims of the Appellant together with its sister companies filed on 6/8/2015 in Suit No. FHC/L/CS/1219/2015: Anchorage
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Leisure?s Ltd & Ors V. Ecobank Nigeria together with the order of maintenance of status quo between the parties and in which the Respondent had filed its Statement of Defense; the Respondent?s Winding – Up Petition against the Appellant filed on 16/10/2015 in Suit No. FHC/L/CP/1569/2015 along with the Motion Ex – parte seeking five orders, which application was refused by the Court below per J. T. Tsoho J., who had further directed the Respondent to put the Appellant on notice and subsequently adjourned the proceedings; the Respondent?s subsequent Winding – Up Petition against th Appeellant filed on 9/11/2015 in Suit No. FHC/L/CP/1689/2015 over the same subject matter as in the Suit No. FHC/L/CP/1569/2015 along with another Motion Ex ? parte, which application was granted by the Court below per Yunusa J.; the Appellant?s Motion on Notice filed on 24/11/2015 praying the Court below to discharge the Ex – parte orders and to also dismiss the second Petition in Suit No. FHC/L/CP/1689/2015 on the grounds that the latter suit constituted an abuse of Court process on the face of the pendency of the earlier two suits between the
35
parties and the refusal of the Court below to dismiss the Respondent?s latter suit.
I have calmly scrutinized the entirety of the pleadings, subject matter, issues and parties in this appeal and the parties in the three other suits between the parties still pending before the Court below. I have also averted my mind sufficiently to the basis or essential elements that would constitute abuse of Court process as concisely and precisely stated in Ogoejeofo V. Ogoejeofo (2006) 3NWLR (Pt. 966)205 SC, to wit:
a. There must be, at least, two matters filed in two different Courts.
b. The said different suits are instituted with the goal of pursuing the same rights (even though on different grounds).
C. The subject matter and or the questions for determination in the two suits must be substantially the same.
d. Frivolous and scandalous use of a lawful Court process to the irritation and embarrassment of another party.
In law an allegation of abuse of Court process is a very serious allegation, which must be established by the person so alleging with sufficient materials before the Court before which the allegation is made. The
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sufficient material need not be an affidavit if on the face of the processes filed it is obvious that the party by his own showing is guilty of abusing the process of the Court. However, where such facts are not apparent on the face of the processes filed, then it is incumbent on the party so alleging to place before the Court, mostly by way of affidavit evidence, the material sufficient enough to warrant the finding of an abuse of Court process in his favor against the other party, failing which such an allegation is taken as unproved and such an objection must fail. For a suit to constitute an above of Court process, though the circumstances are varied and infinite, it must be shown in what way or manner it constituted an abuse of Court process by the party so alleging. It is not such an allegation that a party would make and then fold his hands to see how the other party wriggles out of it. The law is simple and very trite he who alleges must prove what he alleges except where the other party admits the allegation of facts. Thus, all facts on which the parties are ad idem are taken as duly established without the need for any further proof thereof. This has
37
been the settled position of the law and this Court has always reiterated this position in a plethora of its judgment. See MTN Nigeria Communications Limited V. Mundra Ventures (Nig) Ltd. (2016) LPELR ? 40343 (CA), were this Court per Georgewill JCA., had reiterated inter alia thus:
?The law is that any fact admitted by one party need not be proved by the other party, thus facts of which the parties do not dispute are taken as duly established and therefore, no onus lies on either party to further prove such facts on which the parties are agreed. See Smurfit Ltd V. M.V. Gongola Hope (2002) 22 WRN 30. See also Salano V. Olusanya & Ors. (1975) 1 SC 55; Balogun V. Egba Onikolobo Community Bank (Nig) Ltd. (2007) 5 NWLR (Pt. 1028) 584; Hon Zubairu & Anor. V. Iliasu Mohammed & Ors. (2009) LPELR ? 5124 (CA).?
See also Alagbe V. Abimbola (1978) 2 SC 39. See also Egbuna V. Egbuna (1989) 2 NWLR (Pt. 106) 773; Yahaya V. FRN (2007) 23 WRN 127.
My Lords, on the undisputed established facts in this appeal therefore, what better words can be used to describe the slippery and very obvious forum shopping ways of the Respondent
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to file one suit after another without any legal justification, as none had been shown in this appeal, over the same subject matter and between the same parties merely on account of its perceived pressures emanating from the presence of the Central Bank Examiners in the Respondent?s Bank to check its financial books? In law, a subsequent suit such as Suit No. FHC/L/CP/1689/2015: Ecobank Nigeria Ltd V. Honeywell Flour Mills Plc premised on such faulty foundation and merely intended to, and had indeed achieved, the wasting of the time and resources of the Appellant, is one which is nothing but a process in want of bona fide and thus constitutes an abuse of the process of Court, which to all intents and purpose was not meant to serve any useful purpose and was indeed dead on arrival and I therefore un – hesitantly so pronounce it dead on arrival, a pronouncement which the Court below had shied away from making but which it ought to have made.
In Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 @ p. 188, the Supreme Court had opined inter alia thus:
?The concept of abuse of judicial process is imprecise. It involves circumstances and situations
39
of infinite variety and conditions ……It is recognized that the abuse of the process may be in both a proper or 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 judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.?
In the eyes of the law, and indeed in my own eyes too, therefore a process initiated in abuse of the process of Court is one devoid of any competence or life and thus ought to be terminated by the Court, even in limine if so called upon by the party being put through the unenviable task of defending such a process steeped in such mala fide and in abuse of the process of Court. See Ntuks V. NPA (2007) 130 NWLR (Pt. 1051) 392 @ pp. 419 ? 420, where it was stated firmly inter alia that:
?Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation merely to waste valuable litigation time…..The Court process could
40
also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.?
Now, the right of the Respondent ordinarily, if there is absence of any intention to abuse the process of Court, to institute an action by way of Petition for winding – up of the Appellant on account of insolvency or inability of the Appellant to pay its debt to the Respondent is one which in law is distinct from an action for recovery of debt or for damages for breach of contract and is therefore, one which is unaffected by another suit seeking recovery of debt or damages for breach of contract. This is the settled position of the law as was reechoed as well as reiterated in Tate Industries Plc V. Devcom MB Ltd (2004) 17 NWLR (Pt. 901) 200 @ p. 219, where it was held inter alia thus:
?A Petition for Winding – Up of a company on the ground of inability to pay a debt must be distinguished from an ordinary claim for recovery of debt or that of breach of contract. The relief sought in a Winding-Up Petition is not one for recovery of debt or that of breach of contract but one for
41
Winding-Up on account of insolvency or inability to pay debt.?
However, although the right to apply by way of Petition for the winding – up of the Appellant on account of insolvency or inability of the Appellant to pay its debt to the Respondent is a right guaranteed to the Respondent by law in proper, appropriate and deserving circumstances, but the Respondent cannot do so in abuse of the process of Court whereby it institutes concurrently in two different Courts two Petitions for the same purpose of winding – up of the Appellant and thereby clearly engaging in forum shopping in its quest to wound – up the Appellant. Any such attempt would be halted by the Court if so called upon by the Appellant since no Court worth its salt would allow its process to be abused and used as an engine of bad faith to merely annoy and irritate another party. See Adesanoye V. Adewole (2000) 9 NWLR (Pt. 671) 127 @ p. 152.
There is also the issue of existence of a notice of discontinuance brought into play in the submissions of the learned counsel for the Respondent. It was contended for the Respondent that the earlier Petition filed by the Respondent on 16/10/2015
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had been discontinued on 9/11/2015, the same date the subsequent Petition was filed and was therefore, no longer of any moment on the competence of the subsequent Petition. In response, it was contended for the Appellant that the notice of discontinuance filed on the same date with the filing of the subsequent Petition after the Ex – parte reliefs sought in the earlier Petition had been refused by the Court below made the abuse of Court process even worse.
I have taken time to consider these divergent contentions bearing in mind the position of the law on notice of discontinuance and also the vexed issue of forum shopping and the resultant abuse of Court process and I am minded to agree with the apt submissions of the learned Senior Advocate for the Appellant that in the peculiar circumstances and facts of this appeal, as in the printed record, the situation of abuse of Court process was worsened by the fact that the Respondent had to file a notice of discontinuance in a case wherein its prayers for Ex -parte orders were refused by one Judge of the Court below so as to file the same case in another Court on the same day before another judge of the same
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Court below in order to have its way with the grant of the same Ex – parte orders earlier refused by the other judge. This is clearly unconscionable and is hereby deprecated in very clear and strong terms by me.
In Olawore V. Olanrewaju (1998) 1 NWLR (Pt. 534) 436, this Court was faced with a similar scenario of the presence of a notice of discontinuance in an allegation of abuse of Court process and this is was what this Court had to say inter alia @ p. 455 per Aloma Mukhtar JCA (as he then was, and later CJN) thus:
?I hold that it is an abuse of Court process in this case for the Plaintiff to file a notice of discontinuance so that they may have their way in the new Suit No. HOY/32/85?I hope learned counsel for the Plaintiffs will advise his clients accordingly to obviate this flagrant abuse of judicial process of the Court in future.?
I cannot but wholeheartedly endorse the above words of caution and wisdom and direct same to the learned counsel for the Respondent to take heed. A word, it is said, is enough for the wise and prudent counsel!
My Lords, in view of the established facts that on all the key factors as
44
would constitute an abuse of Court process, namely; the parties, the subject matter and the issues involved in both the Respondent?s two suits before the Court below and the Appellant?s earlier suit also still pending before the Court below are the same, the refusal by the Court below to dismiss the Respondent?s subsequent suit, the subject matter of this appeal, for constituting an abuse of the Court process, on the face of the earlier two suits, was clearly in grave error and perverse. It was neither supported nor borne out by the established facts before the Court below.
In law, a decision of a Court found to be perverse is liable to be set aside and the only palliative or purgatory for an erroneously perverse decision of a trial Court before an appellate Court is for it to be set aside. In Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307, it was emphatically pronounced inter alia thus:
?A decision is said to be perverse when it is speculative, not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural
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law, and an Appellate Court can interfere with a decision of the trial Court that is perverse.?
See also Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1; Owor V. Christopher (2010) All FWLR (Pt. 511) 962.
Having therefore, found as fact and on the position of the law that the Respondent?s subsequent Petition filed on 9/11/2015, the subject matter of this appeal was, on the face of the Appellant?s suit and the Respondent?s earlier Petition, hurriedly and mala – fide discontinued on same date of 9/11/2015 because the Court below had refused to grant the same Ex – parte orders sought by the Respondent, over the same subject matter, issues and parties and their privies, was at best a good for nothing attempt at irritating and annoying the Appellant and without any support or basis in law and thus constitutes a very clear abuse of Court process, in law the proper order to be made is simply an order of dismissal to bring it to a definite end. There is no room for any sentiment when it comes to dealing with matters or actions initiated or steps taken in abuse of the process of Court. See African Reinsurance Corp. V. JDP Construction
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(Nig) Ltd (2003) 13 NWLR (PT 838) 609, where the Supreme Court laid this issue to rest on the proper order to be made when a suit or process constitutes and abuse of Court process, when it held alia thus:
?Where the Court comes to the conclusion that its process is abused, the proper Order is that of dismissal of the process.?
This Court had also lent its voice to the devastating consequences on a suit found to be an abuse of the Court process in Dogari V. Waziri & Anor. (2016) LPELR ? 40320 (CA) @ pp. 30 ? 31, where it was reiterated inter alia thus:
?No matter how meritorious the case of a party may be once it is found to be an abuse of the Court processes that is the end of the matter. It becomes a closed chapter and the end of the road for such a matter instituted in abuse of the process of Court…?
See also Dingyadi & Anor V. INEC &Ors. (2011) LPELR ? 950 (SC) @ pp. 38 ? 39; Ogbonmwan V. Aghimien (2016) LPELR ? 40806 (CA) @ p. 22.
In the circumstances therefore, the extant sole issue is hereby resolved in favor of the Appellant against the Respondent and I
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hold firmly that Suit No. FHC/L/CP/1689/2015: Ecobank Nigeria Ltd. V. Honeywell Flour Mills Plc filed on 9/11/2015 constitutes an abuse of the processes of the Court below and is thus liable to be dismissed in limine as prayed for by the Appellant before the Court below and also in this appeal.
In the light of my findings above, I hold that this appeal has merit and ought to be allowed on the sole issue of abuse of Court process as remitted to this Court for determination by the Supreme Court in its judgment. Consequently, I hereby so allow it.
In the result, that part of the ruling of the Federal High Court, Lagos Division, Coram: M. N. Yunusa J., in Suit No. FHC/L/CP/1689/2015: Ecobank Nigeria Limited (RC. No. 89773) V. Honeywell Flour Mills Plc (RC. No. 55495), delivered 4/12/2015, in which Court below declined to grant the Appellant?s application seeking to dismiss the Respondent?s Petition on ground of abuse of Court process is hereby set aside.
?
In its stead, Suit No. FHC/L/CP/1689/2015: Ecobank Nigeria Limited (RC. No. 89773) V. Honeywell Flour Mills Plc (RC. No. 55495) is hereby dismissed for constituting an abuse of Court
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process. There shall be cost of N200, 000.00 against the Respondent in favor of the Appellant.
TOM SHAIBU YAKUBU, J.C.A.: My Lord, BIOBELE ABRAHAM GEORGEWILL, JCA., had made available to me, in draft form, his opinion this appeal. I am in complete agreement with him, in his resolution of the sole main issue in the appeal. The facts of the case as ably rehashed by His Lordship, in the lead judgment, clearly evince the fact that the Suit NO: FHC/LCP/1689/2015, that was an offshoot of the petition which was filed by the Respondents on 9/11/2015 and was heard and determined at the Federal High Court, Lagos Division, Lagos, on 4th December, 2015, manifestly constituted an abuse of the process of Court. The Respondents cannot in good conscience, aver that the said petition was filed in good faith. It was filed mala fide. I think it is appropriate to remind litigants, such as the Respondents herein, of the admonition by the cerebral jurist, Niki Tobi, JSC., May His Soul remain Blessed, of what he said over a decade ago, with respect to the menace of polluting the process of Court, such as it happened in the instant case; in Ashley Agwasim
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& Anor v. David OjiChie & Anor (2004) 10 NWLR (pt.882) 613; (2004) LPELR- 256 (SC) @ page 14, para. A, that:
“Litigation is not a game of chess, where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different positions dearly, plainly and without tricks.”
The Respondents herein, were pursuing two rats at the same time and in the end caught none, as it has turned out in this appeal. I therefore join my learned brother, in allowing the appeal. Consequently, the vexed Suit NO: FHC/L/CP/1689/2015, being an abuse of the process of Court, attracted a dismissal. Hence it stands dismissed.
I adopt the order of award of costs, contained in the lead judgment, as mine.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree with the leading judgment just delivered by my learned brother, BIOBELE ABRAHAM GEORGEWILL JCA that this appeal is meritorious and should be allowed on the sole issue of abuse of the Court’s processes by the subsequent suit in FHC/L/CP/1689/2015: ECO BANK NIG. LTD. VS HONEYWELL FLOUR
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MILLS PLC filed by the Respondent in the lower Court as a petitioner and which was referred to this Court for consideration by the Supreme Court.
I abide with the consequential order made as to costs.
Appeal is allowed.
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Appearances:
Bode Olanipekun, SAN with him, Faith Adarighofua, Esq., Chuba Obi-Okaro, Esq., Mayowa Ajilaye, Esq. and Olawunmi Shobola, Esq.For Appellant(s)
O. A. Divine, Esq. with him, H. A. Atulukwu, Esq., J. O. Bakare, Esq., and M. I. Odejayi, Esq.For Respondent(s)
Appearances
Bode Olanipekun, SAN with him, Faith Adarighofua, Esq., Chuba Obi-Okaro, Esq., Mayowa Ajilaye, Esq. and Olawunmi Shobola, Esq.For Appellant
AND
O. A. Divine, Esq. with him, H. A. Atulukwu, Esq., J. O. Bakare, Esq., and M. I. Odejayi, Esq.For Respondent
