IMPERIAL HOMES MORTGAGE BANK LTD v. MOUNT GILGAL INVESTMENTS LTD & ORS (2020)

IMPERIAL HOMES MORTGAGE BANK LTD v. MOUNT GILGAL INVESTMENTS LTD & ORS

(2020)LCN/14018(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 19, 2020

CA/L/127/2016

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

IMPERIAL HOMES MORTGAGE BANK LTD APPELANT(S)

And

1. MOUNT GILGAL INVESTMENTS LTD 2. MR. KUNLE SONAME 3. TOMI’S HOUSE KC GAMING NETWORKS LIMITED 4. THE GOVERNOR OF LAGOS STATE 5. ATTORNEY GENERAL OF LAGOS STATE 6. REGISTRAR OF TITLES, LAGOS STATE RESPONDENT(S)

RATIO

A NOTICE OF DISCONTINUANCE

A Notice of Discontinuance is filed simpliciter when a claimant willingly and voluntary decides to terminate a suit or a cause of action.
The Supreme Court in defining what a Notice of discontinuance means in ELIZABETH MABAMIJE v HIANS WOLFGANG OTTO (2016) LPELR – 26058 (SC) per RHODES – VIVOUR, JSC held thus;
“A notice of discontinuance is a voluntary termination of a suit by the Plaintiff or complaint…”
(PP. 19 – 20, PARAS. F- A)
It is the right of a Claimant to discontinue an action and this must bedone voluntarily. Order 23 Rule 1 (1) of the High Court of Lagos State (Civil Procedure) Rules 2012 states thus;
(1) The Claimant may at any time before receipt of the Defence, by notice in writing duly filed and served, wholly withdraw or discontinue his claim against all or any of the Defendants or withdraw or discontinue any part or parts of his claim. He shall thereupon pay such Defendants or withdraw or discontinue any parts of his claim. He shall pay such defendant’s costs of the action, or if the action be not wholly withdrawn or discontinued, the costs occasioned by the matter so withdrawn or discontinued.
Order 23 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2012;
2.(1) Where a Defence has been filed and served, the Claimant before taking any other steps in the proceedings, may with the leave of a Judge withdraw or discontinue the proceedings or any part thereof on such terms and conditions as Judge may order.
(2) Where proceedings have been stayed or struck out upon a Claimant’s withdrawal or discontinuance under this Order no subsequent claim shall be filed by him on the same facts until the terms imposed on him by the judge have been fully complied with. PER OBASEKI – ADEJUMO, J.C.A.

WHETHER OR NOT A CLAIMANT CAN DISCONTINUE AS OF RIGHT BEFORE THE DATE OF HEARING

A Claimant can discontinue as of right before the date for hearing AGHADIUNO v ONUBOGU (1998) 5 NWLR (PT. 548) 16 AT 35 PARA E – H PER Ogundare, JSC.
The Claimant has an unqualified right to discontinue his action against a Defendant or any of them without leave of the Court before the date fixed for hearing of the suit. The condition he must satisfy is to give notice in writing of the discountenance (sic) to the registrar and to every defendant as to whom he desires to discontinue or withdraw. The proper order in the circumstances is one striking out the suit. THE VESSEL SAINT ROLAND & ANOR v ADEFEMI OSINLOYE(1997) 4 NWLR (PT. 500) 387 AT 407 D – E, PER IGUH, JSC.”PER OBASEKI – ADEJUMO, J.C.A.

DEFINITION OF ABUSE OF COURT PROCESS

An abuse of Court process has been further defined by this honourable Court in NECTARIOUS MARITIME v CITIBANK NIG & ANOR (2014) LPELR – 22334 (CA) per IKYEGH, JCA;
“Abuse of process always involves some bias, malice, deliberateness, or the desire to misuse or pervert the course of justice by a party (or parties) at ligation against the opponent(s). See Amaefule v State (1988) 2 NWLR (Pt. 75) 156 and Edet v State (1988) 4 NWLR (1988) 4 NWLR (sic) (Pt. 91) 722. Abuse of process will only arise if multiple processes over the same issue are filed and sought to be pursued concurrently to the annoyance, harassment, or torment of the opponent(s), such that the opponent(s) is exposed to waste of time and resources as well as psychological pressure in trying to cope with the defence or response to the multiple processes brought by the other party (or parties) to achieve unwholesome or unlawful results.”
(P. 24, PARAS A – D).
This Honourable Court further held in LAWAL v ZAGO & ORS (2014) LPELR – 24054 (CA);
“The Supreme Court in the case of ACB v Nwaigwe & Ors (2011) 1 LPELR 208 held that abuse of Court process includes a situation where a party improperly uses Judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of Justice, where two or more similar processes are issued by a party against the same Party/parties in respect of the same subject matter or where the process of Court has not been used bona fide and properly.”
See also ABIOLA v FRN & ORS (2014) LPELR – 24109 (CA); GLOBAL SOAP & DETERGENT IND. LTD v NAFDAC (2011) LPELR – 4202 (CA); DUMEZ (NIG) PLC v UBA PLC (2006) LPELR – 7635 (CA). PER OBASEKI – ADEJUMO, J.C.A.

DEFINITION OF “LOCUS STANDI”

On the issue of locus standi, a person is said to have locus standi in a matter when he has the legal capacity to institute proceedings in a Court of law.
In ENGINEER FRANK OKON DANIEL v INEC (2015) LPELR – 24566 (SC) it was held that;
“Locus standi denotes the legal capacity to institute proceedings in court. It is a threshold issue that goes to the root of the suit. On no account should the merits of the case be considered before locus standi is decided. Locus standi affects the jurisdiction of the Court. Consequently, if the plaintiff does not have locus standi to institute the suit the Court would have no jurisdiction to entertain the suit. Usually, it is the Plaintiff that is questioned as to whether he has locus stand. See: Nurses Association v A. G. Fed (1981) 11 – 12 SC p. 1, Thomas v Olufosoye (1986) 1 NWLR (Pt. 18) p. 669, Pacers Multi – Dynamics Ltd v MVD Dancing Sisters & Anor (2012) 1 SC (Pt. 1) p. 75.”
per RHODES – VIVOUR, JSC (P. 47, PARAS. A – D). See also; ISPAT STEEL (NIG) LTD v SAM GRACE & CO LTD & ORS (2017) LPELR – 41874 (CA); OLUBEKO v AWOLAJA &ANOR (2017) LPELR – 41854 (CA); AGBAJE & ORS v OTUNOLA & ANOR (2017) LPELR – 42382 (CA). PER OBASEKI – ADEJUMO, J.C.A.

WHETHER OR NOT A MORTGAGEE CAN BE RESTRAINED IN THE EXERCISE OF HIS POWER OF SALE

In ALAEDE v EKO BANK NIGERIA LTD (2015) LPELR – 25875 (CA) on the question whether a mortgagee can be restrained in the exercise of his power of sale, the court held thus; “It is settled law that the once the debt secured by a Deed of Legal Mortgage becomes due and payable and the mortgagor defaults in paying, the mortgagee is entitled to exercise his power of sale over the mortgaged property – Nigerian Housing Development Society Ltd Vs Mumuni (1977) 2 SC 57, Ogiorio Vs Igbinovia (1998) 13 NWLR (Pt.582) 426 and Bank of the North Ltd Vs Akintoye (1999) 12 NWLR (Pt 631) 392 Section 21 (2) of the Conveyancing Act is for the protection of a purchaser who bought a mortgaged property and, a mortgagee who sold the mortgaged property in good faith and it cannot be used as an instrument of fraud. Thus, if the property was illegally sold, in the sense that the illegality amounts to fraud, the mortgagee could not have passed an unimpeachable title to the purchaser – Oguchi Vs Federal Mortgage Bank Ltd (1990) 6 NWLR (Pt.156) 330, Allied Bank (Nig) Plc Vs Bravo West Africa Ltd (1996) 3 NWLR (Pt.439) 710, United Bank for Africa Ltd Vs Okeke (2004) 7 NWLR (Pt.872) 393, Wema Bank Plc Vs Abiodun (2006) 9 NWLR (Pt 984) 1, Abdulrahman Vs Oduneye (2009) 17 NWLR (Pt.1169) 220, Salami Vs Wema Bank (Nig) Plc (2010) 6 NWLR (Pt.1190) 341.”
per ABIRU, J.C.A (PP. 40-45, PARAS. A-C).
This was the same view of the Apex Court in WEST AFRICAN BREWERIES LIMITED v SAVANNAH VENTURES LTD (2002) LPELR – 3475 (SC) thus;
“There is an abundance of authorities describing the obligations of a mortgagee and, by extension, a receiver, exercising a power of sale. Putting aside the question which does not arise in this case, whether the mortgagee or receiver owes a duty of care in the conduct of the sale, the law seems sufficiently well settled that the mortgagee or receiver engaged in selling the mortgaged property has a duty to act bona fide. The principle had been enunciated by Kay, J as long ago as 1882 in Warner v. Jacob (1882) 20 Ch D 220 adopted by this Court in Ekaeteh v Nigeria Housing Development Society Ltd & Anor (1973) NSCC 373, 380, where this Court said, at page 381: “The only obligation incumbent on a mortgagee selling under and in pursuance of power a sale in the mortgage deed is that he should act in good faith.”PER OBASEKI – ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is appeal is against the ruling of Hon. Justice Oke – Lawal of the High Court of Lagos State, Lagos division (hereinafter referred to as the lower Court), delivered on 26th November, 2015 dismissing the Appellant’s preliminary objection dated 10th June, 2015, challenging the competence of the 1st Respondent’s suit at the lower Court.

A brief summary of the facts leading to this appeal; the Appellant filed a preliminary objection to the suit of 1st Respondent (Claimant at the lower Court) duly commenced by a writ of summons and statement of claim filed on 1st June, 2015 against the Appellant (1st Defendant at the lower Court) and the 2nd – 6th Respondents (2nd – 6th Defendants) for declaratory, injunctive and other reliefs.

The lower Court in its ruling on 26th November, 2015 dismissed the preliminary objection. The Appellant filed a Notice of Appeal on the 10th December, 2015, and Brief of argument was filed on 21st March, 2016, same was settled by Ehis Agboga, Wale Adekola,Ojo – Kuteyi Afolasade (Mrs), Annastasia

Njoteah (Ms.) of FreshBrook, wherein three issues were raised for determination;
i. Whether in view of the pendency of Suit No: ID/ADR/21/2015 filed by the 1st Respondent which suit is pending at the High Court of Lagos State, the 1st Respondent’s later action, Suit No: LD/655CMW/2015 from which this appeal arose is not an abuse of Court process? – (Ground 1)
ii. Whether in view of the unambiguous provisions of the Lagos State Mortgage and Property (Amendment) Law 2015, the 1st Respondent has any locus standi to seek the reliefs sought in its action filed at the High Court of Lagos State? – (Ground 2)
iii. Whether the High Court of Lagos State can in the light of the unambiguous provisions of Lagos State Mortgage and Property (Amendment) Law 2015 grant the reliefs sought in the 1st Respondent’s action before it? – (Ground 3)

In accordance with the rules of this Court, the 1st Respondent also filed its Brief of Argument dated and filed 7th of September, 2016 but deemed 28th January, 2020, and settled by Prince Bayo Omotubora, of Bayo Omotubora Chambers, wherein he distilled three issues for determination;

Whether the lower Court was right in holding that suit No: LD/655CMW/2015 did not constitute an abuse of Court process.
ii. Whether the lower Court was right in holding that the 1st Respondent had locus standi to institute the suit (LD/ 655CMW/2015) against the Appellant and 2nd – 6th Respondents.
iii. Having held that the 1st Respondent had locus standi to bring the suit, whether the lower Court was right to have declined the Appellant’s invitation to pre – judge the substantive claims at interlocutory stage.

APPELLANT’S SUBMISSIONS
Appellant on issue one contends that parties to both actions (LD/655CMW/2015 and ID/ADR/21/2015) are the same at law, Counsel relied on the case ofLSBPC v PURIFICATION TECH (NIG) LTD (2013) NWLR (PT. 1352) 82 @109, PARA H, PG 114, PARA. G. He also cited ABIOLA & SONS B. CO. LTD v 7UP BOTTLING CO. LTD (2012) 15 NWLR (PT. 1322) 184 @196 – 197 PARAS E – A in submitting that parties are meant to include their privies and successor – in – interest, the 2nd & 3rd Respondents were joined as privies or successors – in interest; FRN v DARIYE (2011) 13 NWLR

(PT. 1265) 521; AGBAREH v MIMRA (2008) 2 NWLR (PT. 1071) 378 in submitting that the 4th – 6th Respondents were included as nominal parties and that will not save the action from being an abuse of Court process.

Appellant submitted that the fact that the claims and reliefs in both actions are worded differently would not cure the latter action of the abuse as both actions are designed to achieve the same objective or end result which is; the restoration and/or protection of the proprietary rights of the 1st Respondent in and over the property. The Appellant relied on the dicta in UMEH v IWU (2008) 8 NWLR (PT. 1089) 225 @ 260 – 261, PARAS G – A and SENATOR HEINEKEN LOKPOBIRI v HON. FOSTER OGOLA (2016) 3 NWLR (PT. 1499) PG. 328 to the effect that the 1st Respondent could easily have amended its claims in suit No: ID/ADR/21/2015 to include the grounds and the reliefs sought in suit No: LD/655CMW/2015 and brought an application for joinder 2nd – 6th Respondents joined to the first action, rather than file a new action. AFRICAN REINSURANCE CORPORATION v JDP CONSTRUCTION NIGERIA LTD (2003) 13 NWLR (PT. 838) 609 AT 635 PARAS. E – G

and TA IND LTD v FBN PLC (NO. 1) (2012) 14 NWLR (PT. 1320) 326 @ 349.

Appellant further submits on issue that, the notice of discontinuance once filed, does not automatically terminate an action where a defence has already been filed and served, under Order 23 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2012.

On issue 2, Appellant submits that contrary to the decision of the learned trial judge, the 1st Respondent does not possess the necessary locus standi to seek the reliefs sought in suit no: LD/655CMW/2015 because a party can only seek reliefs which are justiciable in law; ENGINEER ETIM FRANK & ORS v COLONEL M. A ABDU (RETIRED) (2002) LPELR – 12178 (CA); CHIEF FRIDAY OWERRE ORIKE (UMU – OHIA ROYAL FAMILY) & ORS v CHIEF ABALI OSIAGOR & ORS (2010) LPELR – 3935 (CA) and KULAK TRADES & INDUSTRIES PLC v THE TUG BOAT M/V JAPUAL B & ANOR (2010) LPELR – 8630 (CA) were cited in aid.

Appellant further submits that the rights/reliefs the 1st Respondent seeks to enforce are not legally recognised, conferred or protected by law, therefore lacks the requisite locus standi to seek reliefs 1

– 10 and relief 13. Counsel relied on Section 38 (2) Lagos State Mortgage and Property (Amendment) Law, 2015; BUHARI v YUSUF (2003) 14 NWLR (PT. 841) 446; ATT. GENERAL (OGUN) v ALHAJA A. ABERUABGA & ORS (1985) 4 SC (PT. 1) 288.

Appellant opines that in light of the provisions of MPAL, the only reliefs that the 1st Respondent can seek are reliefs 11 and 12 of the Statement of claim, which are reliefs in damages but these reliefs cannot be granted because once a main claims in an action fails, the ancillary claims must also fail. NWAOGWUGWU v PRESIDENT FRN (2007) ALL FWLR, (PT. 389) 1327 AT 1358, PARA G; OKOROMA & ANOR v CHIEF CHRISTIAN UBA & ORS (1998) LPELR – 6405 (CA); NABORE PROPERTIES LTD v PEACE – COVER NIGERIA LTD & ORS (2014) LPELR – 22586 (CA).

Appellant on issue 3 submits that issue II of its Notice of preliminary objection at the lower Court was a compound issue having two limbs; the 2nd limb which affects the jurisdiction of the lower Court to grant or refuse the grant of the reliefs sought was never addressed by the lower Court in its Ruling of November 26, 2015. OJOGBUE & ORS v AJIE NNUBIA & ORS

(1972) 1 ALL NLR (PT. 2) 226 AT 232; OKONJI v NJOKANMA (1991) 7 NWLR (PT. 202) 131 AT 152 PARA H; EBAMAWA v FADIYA (1973) 1 ALL NLR (PT. 11) 134 were cited in submitting that a Court of law, particularly a trial Court is bound to pronounce on all issues raised before it.

Appellant urges the Court by virtue of Section 15 Court of Appeal Act and Order 4 Rule 3 Court of Appeal Rules, 2011 to make a finding and/or pronouncement on the issue.
HARKA AIR SERV (NIG) LTD v KEAZOR (2011) 13 NWLR (PT. 1264) 320 @ 353 – 355 PARAS F – B; ADEBIYI v UMAR (2012) 9 NWLR (PT. 1305) 279 @ 301 PARAS. B – D; FRN v DANIEL (2012) 4 NWLR (PT. 1289) 40 @ 59 PARAS. F – G; THE SURVEYOR – GENERAL OF CROSS RIVER STATE & ORS v MR. OPUTE JONATHAN & ORS (2014) LPELR – 23380 (CA); IPCO v. NIGERIA NATIONAL PETROLEUM CORPORATION (2013) LPELR – 22083 (CA) and DR. OKOROMA & ANOR v CHIEF CHRISTAIN UBA & ORS (SUPRA) were cited in aid.

1ST RESPONDENT’S SUBMISSIONS
The 1st Respondent on issue 1 submits that the Appellant’s argument are abstract and completely disconnected from the facts of the case and that

cases are invariably decided on their peculiar facts and circumstances. Counsel cited UNITED FOAMS PRODUCTS (NIG) LTD v OPOBIYI (2012) ALL FWLR (PT. 645) 303 at 327, PARAS E – F; F.B.N (NIG) PLC v AKPARABONG COMMUNITY BANK LTD (2006) ALL FWLR (PT. 319) 927 AT 903, PARAS A – B; ADENIYI v OYELEYE (2014) ALL FWLR (PT. 726) 538 AT 574, PARA H.

It is the submission of the 1st Respondent that the 2nd & 3rd Respondents by their 1st and 2nd Statement of Defence are in collusion with the Appellant, their inclusion therefore is not mere formality or as nominal parties. The 4th – 6th Respondents are necessary parties as evidenced in the statement of claim.

Counsel contends that the Appellant’s arguments ignored the reliefs sought in both suits, parties involved in each of them, the intention and purposes of each of them; and the contemptuous behaviour of the Appellant in ID/ADR/21/2015, which gave rise to LD/655CMW/2015.

Counsel further contends that the abuse of Court process is to harass, irritate or annoy the other party and includes some desire to misuse or pervert the system. The 1st Respondent rather sought judicial refuge

and came to Court to protect its interest against the unmitigated greed of the Appellant. Counsel called in aid. NDIC v UBN PLC (2015) ALL FWLR (PT. 783) 1790, P. 1824, PARAS B – C; CHRISTIAN OUTREACH MINISTRIES INC v COBHAM (2006) ALL FWLR (PT. 310) 1675 AT 1692, PARAS E – H; DINGYADI v INEC (2010) ALL FWLR (PT. 550) 1204 AT 1254; SARAKI v KOTOYE (1992) 9 NWLR (PT. 264) 156 AT PAGES 188 – 189; ANPP v HARUNA (2005) ALL FWLR (PT. 242) 549 AT 569 – 672; AMAEFULE v STATE (1988) 2 NWLR (PT. 75) 156; ADENIYI v AKINYEDE (2010) ALL FWLR (PT. 503) 1257 AT 1343, PARAS E – F.

1st Respondent submits that the parties involved in the suits are not the same, the sole defendant in ID/ADR/21/2015 was GT homes Ltd and as at the time it was filed, GT Homes Ltd was already defunct and no longer juristic; the suit was therefore not properly filed. PRINCIPAL GOVT. SEC. SCH, IKACHI v IGBUDU (2006) ALL FWLR (PT. 299) 1420 AT 1440 – 1441, PARAS H – N; CBN v EDEH (2015) ALL FWLR (PT. 768) 879 AT 894 – 896, PARAS G – B; FCE GUSAU v ABUBAKAR (2013) ALL FWLR (PT. 709) 1130 AT 1145, PARAS F – G.

The 1st Respondent on discontinuance submits that at the time (28th May, 2015) the Notice of discontinuance was filed, pleadings had not yet been concluded, so the case had not yet been fixed for trial. The law provides for leave of the Court to discontinue a suit on or after the date fixed for hearing, where there is no date fixed for trial, a notice for discontinuance terminates the case automatically. Counsel relied on BABATUNDE v PAS & TA LTD (2007) ALL FWLR (PT 372) 1721 AT 1743 – 1745; UMEANADU v ATT. GEN. ANAMBRA (2008) ALL FWLR (PT. 416) 1996 at 1018 – 1019, PARAS G – G.

Counsel on issue 2, submits that the averments in paragraphs 8 – 18, 22 – 24 and 31 of the statement of claim, clearly shows the 1st Respondent’s cause of complaint, the violation of its civil rights and the justiciable dispute with the Appellant; which is line with the principles of law enunciated in ORIME v OSIAGKR (2012) ALL FWLR (PT. 614) 156 at 165 – 166, PARAS D -A; ATT. GENERAL KADUNA STATE v HASSAN (1985) NWLR (PT. 8) 483; OSIGBEMEH v EGBAGBE (2014) ALL FWLR (PT. 744) 58 at 76 – 77, PARAS D – A; OWODUNNI v REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST

(2000) FWLR (PT. 9) 1455; ADESOKAN v ADEGOROLU (1993) 3 NWLR (PT. 179) 216 on locus standi.

Counsel contends that having paid the Appellant the sum of N12 Million as full and final debt of the balance of the mortgage debt which the Appellant accepted. The Appellant’s further imposition of N3 Million which was not part of the legal mortgage and when the 1st Respondent was unable to pay, sold the property for N30 million, therefore the 1st Respondent has justiciable interest in the suit. Counsel relied on ADETONO v ZENITH INT’L BANK PLC (2012) ALL FWLR (PT. 611) 1443 at 1458, PARAS C – E.

On issue 3, 1st Respondent argued that the Appellant’s argument canvassed on issue 3, pre-empts live issues in the substantive at the interlocutory stage of hearing an objection. Counsel cited in aid; ADETONO v ZENITH INT’L BANK PLC (SUPRA); Sections 37 & 38 of Mortgage and Property Law.

APPELLANT’S REPLY
In Reply, the Appellant’s submits that they have shown by Exhibit 1 of the Further Affidavit of Funmilayo Kolawole that the Defendant in Suit No: ID/ADR/21/2015 is one and the same

entity as the 1st Defendant herein. The Defendant only changed his name from GT Homes Limited to Imperial Homes Mortgage Bank Limited.

Appellant went on to submit that a change of name of a corporate organisations is provided for under the law and this change does not mean that a new legal personality is created as a result of the change of name, Counsel cited Section 31 (3), (5) and (6) Companies and Allied Matters Act.
Counsel contends that the 1st Respondent reliance on NDIC v UBN PLC (2015) ALL FWLR (PT. 783) 1790 amounts to a misapplication of the principle of stare decisis and its reliance onBABATUNDE v PASTAL (2007) ALL FWLR (PT. 372) 1721 @ 1743 – 1745; UMEANADU v A. G ANAMBRA (2008) ALL FWLR (PT. 416) 1996 AT 1018 – 1019 to contend that an action is discontinued as of right where no trial date has been given is otiose at law, the cases were decided before the High Court of Lagos State (Civil Procedure) Rules, 2012 which abolished discontinuance by mere filing of a Notice where a defence has been filled. Counsel cited in aid OJO v ATTORNEY GENERAL, OYO STATE (2008) 15 NWLR (PT. 1110) 309 @ 325 PARA C; OWNERS OF THE MV “ARABELLA” v N.A.I.C

(2008) 11 NWLR PT. 1097 PG. 182 AT 205 – 206, PARA G – C.

Appellant in replying the 1st Respondent’s argument on locus standi and reliance on Section 48 of the Lagos State Mortgage and Property (Amendment) Law with particular regard to the fact that the money secured by the mortgage has been discharged.

NWAOLISAH v NWABUFAH (2011) 14 NWLR (PT. 1268) 600 @ 631 PARAS. G – H. He repeated the facts of the case and relied on Order 22 of the High Court of Lagos State (Civil Procedure) Rules 2012; EGWU v EKE (SUPRA) and HORIZON FIBRES (NIG) PLC v M. V. BACO LINER 1 (2002) 8 NWLR (PT. 769) 466; IPCO NIGERIA LTD v NIGERIAN NATIONAL PETROLEUM CORPORATION (SUPRA); DR. OKOROMA & ANOR v CHIEF CHRISTIAN UBA & ORS (SUPRA); AKINFOLARIN v AKINOLA (1994) 3 NWLR (PT. 335) 659 at 674; AZAKA IZEIKWE & ORS v NNADOZIE 14 WACA 363 @ 363; ADEYEMI v OPEYORI (1976) 9 – 10 S.C. 31; TUKUR v GOVERNOR OF GONGOLA STATE (1989) 4 NWLR (PT. 117) 517, that a relief sought in a matter determines the jurisdiction of a Court.

RESOLUTION
Having carefully gone through the briefs, the record and the

facts of this appeal before this Court, the issues of both parties in this appeal are overlapping though differently phrased except for issue 3 of the Appellant, but the issues that are paramount to the resolving of this appeal borders on;
i. Whether the 1st Respondent by instituting Suit No: LD/655CMW/2015 has not abused Court process and
ii. Whether the 1st Respondent has locus standi to institute this suit and whether the statutory objections of the appellant can be determined at this stage.

In resolving these issues, I shall take them together since they flow from the same facts.

done voluntarily. Order 23 Rule 1 (1) of the High Court of Lagos State (Civil Procedure) Rules 2012 states thus;
(1) The Claimant may at any time before receipt of the Defence, by notice in writing duly filed and served, wholly withdraw or discontinue his claim against all or any of the Defendants or withdraw or discontinue any part or parts of his claim. He shall thereupon pay such Defendants or withdraw or discontinue any parts of his claim. He shall pay such defendant’s costs of the action, or if the action be not wholly withdrawn or discontinued, the costs occasioned by the matter so withdrawn or discontinued.
Order 23 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2012;
2.(1) Where a Defence has been filed and served, the Claimant before taking any other steps in the proceedings, may with the leave of a Judge withdraw or discontinue the proceedings or any part thereof on such terms and conditions as Judge may order.
(2) Where proceedings have been stayed or struck out upon a Claimant’s withdrawal or discontinuance under this Order no subsequent claim shall be filed by him on the same facts until the

terms imposed on him by the judge have been fully complied with.

The Appellant in Suit No: ID/ADR/21/2015 filed its statement of Defence and served it on the 1st Respondent way before it filed its Notice of discontinuance on the 28th of May, 2018.

The 1st Respondent consequently retraced his steps and withdrew the Notice of Discontinuance and filed in its stead an application for leave to discontinue dated 5th January, 2016 and this was granted on 7th March, 2016 by Hon. Lateefat Okunnu of the High Court of Lagos State, Ikeja Division with costs awarded in favour of the Appellant.

The learned trial judge wrongly relied on the Notice of Discontinuance of May 28th, 2015 when it held at pages 414 (paragraph 5) – 415 (paragraph 1) thus;
“It is clear that from the records of Court that the notice of discontinuance was filed in the suit ID/ADR/21/2015 on the 26/5/15 which predates the filing of this case before me.
The case before me was filed on the 1/6/15, the filing of a notice of discountenance (sic) by a Claimant terminates the case.
A Claimant can discontinue as of right before the date for hearing AGHADIUNO v ONUBOGU

(1998) 5 NWLR (PT. 548) 16 AT 35 PARA E – H PER Ogundare, JSC.
The Claimant has an unqualified right to discontinue his action against a Defendant or any of them without leave of the Court before the date fixed for hearing of the suit. The condition he must satisfy is to give notice in writing of the discountenance (sic) to the registrar and to every defendant as to whom he desires to discontinue or withdraw. The proper order in the circumstances is one striking out the suit. THE VESSEL SAINT ROLAND & ANOR v ADEFEMI OSINLOYE(1997) 4 NWLR (PT. 500) 387 AT 407 D – E, PER IGUH, JSC.”

Much as this seemingly mix-up in the ruling, it did not affect the outcome and no miscarriage was occasioned because leave had been sought and obtained for the discontinuance of the suit. Furthermore, the Appellant are not appealing against this.

However, the 1st Respondent by all indications primarily wanted to discontinue Suit No: ID/ADR/21/2015, and in good faith did so upon realizing that the sole purpose of the earlier suit had been compromised. I therefore cannot find circumstances against the discontinuance.

Circumstances where a notice of discontinuance would amount to an abuse of Court process was stated in THE VESSEL “SAINT ROLAND” & ANOR v ADEFEMI OSINLOYE (1997) LPELR – 3234 (SC) thus;
“…it is a clear abuse of process to use the machinery of Notice of Discontinuance without leave to improve a plaintiff’s position unjustly. See Castanho v Brown and Root, supra at 114 – 115. Similarly, filing a Notice of Discontinuance immediately after obtaining substantial interim advantages or some unjust enrichment in a suit to the prejudice of the defendant constitutes an abuse of process. Such interim advantage may include securing unjustifiable substantial payments in the suit just before filing the Notice to the detriment of the defendant.”
per IGUH, JSC (PP. 29 – 30, PARAS. E – G)
it was further held at P. 26, PARAS. E – G;
“In considering whether or not the service of a Notice of Discontinuance was an abuse of process, it is necessary to have regard to the overall position as between the plaintiff and the defendants and what the plaintiff was attempting to achieve by servicing the Notice. See Fakih Brothers v A. P. Moller (Copenhagen) Ltd. And others

(1994) 1 Lloyd’s Law Rep. 103 at 109.”
See also; SCHEEP & ANOR v THE MV “S. ARAZ” & ANOR (2000) LPELR – 1866 (SC).
The circumstances in the notice of discontinuance herein were the acts of the Appellant’s who sold the Mortgaged property to the 2nd – 3rd Respondents during the pendency of the matter.
The Appellant cannot compel or coerce the 1st Respondent to maintain or continue a cause of action, I agree with the lower Court that the subject matter of both suits is different. In ID/ADR/21/2015 the 1st Respondent wanted to stop the sale of the mortgaged property and deal with the issue of the N3 Million penalty upon which ground, the Appellant stood to contend that the Mortgage loan has not been paid.
While, Suit No: LD/65CMW/2015 was instituted after this sale had been carried out by the Appellant and after the payment of the mortgage as communicated. The notice of discontinuance upon leave terminated the suit at the Multi-door Court and it left the coast clear for a new suit with the new facts and different reliefs.

includes a situation where a party improperly uses Judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of Justice, where two or more similar processes are issued by a party against the same Party/parties in respect of the same subject matter or where the process of Court has not been used bona fide and properly.”
See also ABIOLA v FRN & ORS (2014) LPELR – 24109 (CA); GLOBAL SOAP & DETERGENT IND. LTD v NAFDAC (2011) LPELR – 4202 (CA); DUMEZ (NIG) PLC v UBA PLC (2006) LPELR – 7635 (CA).
In the first action at the lower Court the parties were; Mount Gilgal Investment Limited (Claimant) and GT Homes (Defendant) and in the second suit there was the inclusion of the 2nd – 6th Respondents.
I gleaned from the record before the Court, that the 2nd & 3rd Respondents purchased the mortgaged property from the Appellant for N30 million as averred in paragraph 3 of the affidavit in support of the motion on notice dated 9th June, 2015 which in turn makes them interested parties to the suit.
The Appellant argued vehemently that the reliefs sought by

the 1st Respondent in suit No: ID/ADR/21/2015 and LD/655CMW/2015 would achieve the same end result. However, the Appellant failed to avert its mind to the peculiar facts of this case that would make the incorporation of the reliefs sought in LD/655CMW/2015 into ID/ADR/21/2015; the parties, the issues involved, the intention of each action and that the sale of the Mortgaged property during the pendency of ID/ADR/21/2015 birthed the latter action.
The reliefs sought before the lower Court in the first action were reliefs only against the Appellant; that the 1st Respondent is not indebted to the Appellant for the sum of N5 MILLION having cleared the mortgage and cannot invoke power of sale amongst other declaration, whereas the reliefs sought in the second action are against the Appellant who during the pendency of the former case now invoked its power of sale and sold the property to the 2nd & 3rd Respondents and that same be declared null and void. See NDIC v UBN PLC (2015) ALL FWLR (PT 783) 1790; REGISTERED TRUSTEE OF THE LIVING CHRIST MISSION v ADUBA (2000) 2 SC 1.
I am in agreement with the lower Court that upon comparison of both writ and

statement of claims in both suits, the suits are substantially different and devoid of any abuse of Court process.

See also; ISPAT STEEL (NIG) LTD v SAM GRACE & CO LTD & ORS (2017) LPELR – 41874 (CA); OLUBEKO v AWOLAJA &ANOR (2017) LPELR – 41854 (CA); AGBAJE & ORS v OTUNOLA & ANOR (2017) LPELR – 42382 (CA).
The main port of call is the statement of claim; which discloses a legal or justiciable right. The claim must reveal a justiciable cause of action.

The 1st Respondent’s statement of claim (pages 5 – 13) from the record has shown that its right has been violated or invaded, its justiciable dispute with the Appellant and a good cause for complaint. The 1st Respondent having paid up the mortgage debt, the Appellant accepted, but conditioned the release of the title documents until the extra sum of N3 Million has been paid, at the convenience of the 1st Respondent.

The Appellant thereafter renegade on the 1st Respondent, by selling the said property in dispute which, led to the suit with the reliefs sought, especially reliefs 1- 3 and 7.

The 1st Respondent complains of the Appellant’s greed, fraud perpetuated against him by introducing new fee into the mortgage which was not included in the mortgage agreement

during the ADR session exploring settlement and under this circumstances, the allegation the Appellant raises on the absence of locus standi, is tantamount to taking a sweet from a child and telling the child not to cry. Of course the child would cry out loud and attract any attention for justice, this is the scenario herein, the 1st Respondent cannot be shut out of the temple of justice, the 1st Respondent must have his day in Court to prove his claim, this is the meaning of locus standi in local parlance; he has a personal interest to protect, a sufficient one at that.

Therefore, in answer to issue iii of the Appellant’s brief, it is upon a trial of the issues raised in the suit that the Court would decide the case once and for all and not at this interlocutory stage as suggested by the Appellant, notwithstanding the statutory defence that; by Section 37 & 38 of Mortgage and Property Law; the 1st Respondent can only seek reliefs under damages raised, same cannot be settled at a glance.

Therefore, I take the firm stance and agree with the lower Court that there is no abuse of Court process and the 1st Respondent has sufficient interest,

therefore the locus standi to initiate the suit at the lower Court.

It is important to add that all arguments of the Respondents are arguments in the substantive suit to be heard on its merit, the allegations of the 1st Respondent hinges and questions the conduct of the Appellant in good faith, and fraud which cannot be determined via a preliminary objection, it amounts to determining the suit on an interim application. See OCEANIC BANK V SIGMA APARTMENTS LTD 2018 LPELR – 44448. In ALAEDE v EKO BANK NIGERIA LTD (2015) LPELR – 25875 (CA) on the question whether a mortgagee can be restrained in the exercise of his power of sale, the court held thus; “It is settled law that the once the debt secured by a Deed of Legal Mortgage becomes due and payable and the mortgagor defaults in paying, the mortgagee is entitled to exercise his power of sale over the mortgaged property – Nigerian Housing Development Society Ltd Vs Mumuni (1977) 2 SC 57, Ogiorio Vs Igbinovia (1998) 13 NWLR (Pt.582) 426 and Bank of the North Ltd Vs Akintoye (1999) 12 NWLR (Pt 631) 392 Section 21 (2) of the Conveyancing Act is for the protection of a purchaser who bought a

mortgaged property and, a mortgagee who sold the mortgaged property in good faith and it cannot be used as an instrument of fraud. Thus, if the property was illegally sold, in the sense that the illegality amounts to fraud, the mortgagee could not have passed an unimpeachable title to the purchaser – Oguchi Vs Federal Mortgage Bank Ltd (1990) 6 NWLR (Pt.156) 330, Allied Bank (Nig) Plc Vs Bravo West Africa Ltd (1996) 3 NWLR (Pt.439) 710, United Bank for Africa Ltd Vs Okeke (2004) 7 NWLR (Pt.872) 393, Wema Bank Plc Vs Abiodun (2006) 9 NWLR (Pt 984) 1, Abdulrahman Vs Oduneye (2009) 17 NWLR (Pt.1169) 220, Salami Vs Wema Bank (Nig) Plc (2010) 6 NWLR (Pt.1190) 341.”
per ABIRU, J.C.A (PP. 40-45, PARAS. A-C).
This was the same view of the Apex Court in WEST AFRICAN BREWERIES LIMITED v SAVANNAH VENTURES LTD (2002) LPELR – 3475 (SC) thus;
“There is an abundance of authorities describing the obligations of a mortgagee and, by extension, a receiver, exercising a power of sale. Putting aside the question which does not arise in this case, whether the mortgagee or receiver owes a duty of care in the conduct of the sale, the law seems sufficiently well

settled that the mortgagee or receiver engaged in selling the mortgaged property has a duty to act bona fide. The principle had been enunciated by Kay, J as long ago as 1882 in Warner v. Jacob (1882) 20 Ch D 220 adopted by this Court in Ekaeteh v Nigeria Housing Development Society Ltd & Anor (1973) NSCC 373, 380, where this Court said, at page 381: “The only obligation incumbent on a mortgagee selling under and in pursuance of power a sale in the mortgage deed is that he should act in good faith.” The proposition was also expressed in the decision of the House of Lords in Kennedy v. De Trafford (1897) AC 180 from which the proposition stated above was, apparently, taken as stated in the head note to that case. Granted that the duty of mortgagee, or receiver, to act in good faith is capable of precise statement, what amounts to good faith covers a multitude of conduct having, I venture to think, dishonesty or reprehensibility as common elements. Commenting on the mortgagee’s duty to act in good faith in selling the mortgaged property, Lord Herschell said in Kennedy v De Trafford, supra, at P. 185: “It is very difficult to define

exhaustively all that would be included in the words ‘good faith’ but think it would be unreasonable to require the mortgagee to do more than exercise his power of sale in that fashion. Of course, if he wilfully deals with the property in such manner that the interests of the mortgagor are sacrificed, I should say that he had not been exercising his power of sale in good faith.” Where the action is set aside a sale of the mortgaged property by reason of the lack of good faith of the mortgagee or receiver, collusion with the purchaser must be established. Therein lies the relevance of pleading collusion or facts from which such can be inferred. See Ekaeteh v Nig. Housing Dev. Society (Supra) at P. 381.”
per AYOOLA, JSC (PP. 33 – 34, PARAS A -F)

Following from the analysis above, the ruling of lower Court is in the light of the circumstances of the facts leading to this appeal and it is unimpeachable. I resolve all issues in the appeal against the Appellant

The appeal lacks merit and is therefore dismissed. The ruling of Hon. Justice Oke – Lawal of the High Court of Lagos State, Lagos division delivered on 26th

November, 2015 is hereby upheld.
This suit has suffered delay and should therefore be assigned to a Judge to hear speedily.
Cost of N300, 000 is awarded against the Appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A.: I have been availed, in advance, the leading judgment delivered by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA. I agree with the reasoning and conclusion in it. l too, visit dismissal on the appeal.
I abide by the consequential orders decreed in it.

Appearances:

EHIS SGBOGA For Appellant(s)

IGE K. A. FOR THE 4TH, 5TH & 6TH RESPONDENTS

OMOTUBARA FOR THE 1ST RESPONDENT. For Respondent(s)