KHADRA ENTERPRISES LIMITED v. PROF. GBOLAHAN ELIAS, SAN & ANOR
(2018)LCN/12138(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of November, 2018
CA/L/545/2018
RATIO
APPEAL: FINDINGS AGAINST WHICH THERE IS NO APPEAL
“It is trite law that a finding against which there is no appeal remains binding and conclusive: See Alakija v.Abdulai (1998) 5 S.C. 1; (1998) 6 NWLR (Pt. 552) 1 at p. 24, Odiase v. Agho (1972) 3 S.C. (Reprint) 69; (1972) All NLR (Pt. 1) 170; Foreign Finance v. L.S.D.P.C. (1991) 1 NSCC 520, P.N. Udoh Trading CD. Ltd. v. Abere (2001) 5 S.C. (Pt. II) 64; (2001) 11 NWLR (Pt. 723) 114 al 146,Yesufu v. Kupper International (1996) 5 NWLR (Pt. 446) 17, Nwabueze v. Okoye (1988) 10-11 S.C. 77; (1988) 4 NWLR (Pt. 91) 664. See also Amale v. Sokoto Local Government (2012) 5 NWLR (pt.1292) 181 and the series of cases (supra) cited by the appellant on the issue.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICE
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
KHADRA ENTERPRISES LIMITED
(In Receivership)Appellant(s)
AND
1. PROF. GBOLAHAN ELIAS,SAN
(The Receiver/Manager of Khadra Enterprises Limited appointed by Asset Management Corporation of Nigeria)
2. ASSET MANAGEMENT CORPORATION OF NIGERIA
(The Corporation that appointed Prof. Gbolahan Elias, SAN as the Receiver/Manager of Khadra Enterprises Limited)Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is against the decision of the Federal High Court sitting in Lagos (the Court below) whereby the motion challenging the jurisdiction of the Court below was dismissed after the Court below held that part of the action before it was an abuse of the process of the Court and proceeded to determine the other part of the action against the appellant.
In outline, the 2nd respondent purchased the debt portfolio of N620,100,218.02 from Fidelity Bank Plc which debt was said to be owed by Continental Aviation Services Limited. After purchasing the alleged debt the 2nd respondent appointed the 1st respondent the receiver/manager of the appellant, the alleged guarantor of the debtor, Continental Aviation Services Limited. The respondents as plaintiffs commenced receivership proceedings by originating summons against the appellant as the defendant at the Court below.
The action also covered the alleged debts of N278,782,236.61 and N1,136,250,000.00 owed by Continental Aviation Services Limited as purchased by the 2nd respondent from Finbank Plc. Another had been filed at the High Court of Lagos State between Fidelity Bank Plc. v. Afrijet Airlines Limited and Mr. Vitalis Ibe and Mr. William Barry Noelle claiming the N620,100,218.02 before the action at the Court below was launched.
The appellant took preliminary objection to the action at the Court below that it is an abuse of the process of the Court and in breach of Section 35(6) of the Asset Management Corporation of Nigeria (AMCON) Act 2010, as amended by the AMCON Act of 2015 and requested for the action to be dismissed on that ground.
The Court below heard the motion together with the rival submissions and held that the action was an abuse of the process of the Court but it proceeded to assume jurisdiction over the action.
Not satisfied with the decision, the appellant filed a notice of appeal with eleven (11) grounds of appeal. The appellants brief of argument was filed on 10.05.18. It was argued in the brief that having held in its ruling in page 539 of the record of appeal (the record) that the action as it relates to the debt of Continental Aviation Services Limited, the 2nd appellant cannot in a bid to enforce the recovery of the debt, invoke the machinery of receivership in the action to purport the realise the security when the earlier suit No.ID/1105/2010 is the same as the action, the Court below erred by concluding in its ruling in pages 552 553 of the record that the preliminary objection had no merit and therefore it failed and subsequently dismissed by the Court below instead of dismissing the action citing in aid the cases ofArubo v. Aiyeleru (1993) 3 NWLR (pt. 280) 126 at 142, 146, T.S.A. Ind. Ltd. v. FBN Plc (2012) 14 NWLR (pt.1320) 326 at 352, Ukachukwu v. PDP (2014) 4 NWLR (pt.1396) 65 at 81, Dingyadi v. I.N.E.C. (No.1) (2010) 18 NWLR (pt.1224) 1 at 77, Amachree v. Princewell (2008) 12 NWLR (pt. 1098) 345 at 363.
It was argued in the brief that the finding and holding of the Court below that the respondents suit was an abuse of the process of the Court became an issue of jurisdiction which should have warranted the Court below to dismiss the action citing in aid the cases ofMadukolu v. Nkemdilim (1962) SCNLR 341, Dingyadi v. I.N.E.C. (2011) 10 NWLR (pt. 1255) 347 at 389 390. Dogari v. Waziri (2016) LPELR 40320, Tony-Anthony Holdings Ltd. v. Commercial Bank for Africa (2013) LPELR 20286, Nigeria Intercontinental Bank Ltd. v. Union Bank of Nigeria Ltd. (2004) 12 NWLR (pt. 888) 599 at 622, Ashley Agwasim and Anor. v. David Ojichie and Anor. (2004) 10 NWLR (pt. 882) 613 at 624.
It was argued in the brief that having earlier held in the judgment that the action was an abuse of process, the Court below was estopped from holding in conclusion that the preliminary objection had no merit, but should have dismissed the action rather than assume jurisdiction in the action citing in aid the cases of Shanu v. Afribank Plc (2002) 17 NWLR (pt. 795) 185 at 219, Savor v. Suswam (2012) LPELR 8611.
The appellant argued in the brief that the Court below denied the appellant fair hearing when it failed to consider the submission of the appellant that by Section 35(6) of the AMCON Act, the 2nd respondent should not have filed the action at the Court below, but should have either continued with the first action at the High Court of Lagos State or discontinued that action and commenced a new one and being a statutory mandate the 2nd appellant was bound to follow it citing in aid the cases of Federal Government ofNigeria v. Zebra Energy Ltd. (2002) 18 NWLR (pt. 798) 162 at 200, Okereke v. YarAdua (2008) 12 NWLR (pt.1100) 95 at 127, Eimskip Ltd. v. Exquisite Ind. Ltd. (2003) 4 NWLR (pt. 809) 88 at 118, Nigercare Development Company Ltd. v. Adamawa State Water Board and Ors. (2008) 9 NWLR (pt.1093) 498, Mobil Producing (Nig.) Unlimited Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution); upon which the appellant advocated that the appeal should be allowed and the reliefs contained in paragraph 4 of the notice of appeal in pages 600 601 of the record be granted.
The respondent argued in the brief of argument filed on 11.06.18, but deemed as properly filed on 18.10.18, that the action at the Court below was also against Finbank Plc upon which the 1st appellant was appointed receiver and manager of Finbank Plc with respect to the indebtedness of Continental Aviation Services Ltd. and that the suit at the High Court of Lagos State is between Fidelity Bank Plc v. Afrijet Airlines Ltd et al which is of a different character from the action at the Court below therefore the action at the Court below is not an abuse of the process of the Court and that the Court below properly assumed jurisdiction over the action when it held in page 539 lines 19 -22 that to the extent that the action is on the alleged indebtedness of Continental Aviation Services Limited to Fidelity Bank Plc only the action is an abuse of the process of the Court but not with respect to the other legs of the action which was not appealed against and is binding on the appellant, that the judicial protection of the receiver in respect of the debenture made between the appellant and Finbank Plc showed the two suits relate to different causes of action.
It was further argued that a claimant is entitled to join several causes of action in one; and that the ruling read holistically would show that the holding of the Court below on abuse of process did not affect the leg of action on debenture and the debt Continental Aviation Services Limited owed Finland Bank Plc citing in support the cases ofAiroe Construction v. University of Benin (1985) NWLR (pt. 2) 287, Adegbuyi v. Action Congress of Nigeria (2012) LPELR 8660, Umeh v. Iwu (2008) 8 NWLR (pt. 1089) 225, Society Bic S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (pt. 1398) 497, William v. Hunt (1905) 1 KB 512 at 514, CBN v. Ahmed (2001) 11 NWLR (pt. 724) 369, Jallco Ltd. v. Owoniboys Technical Services Ltd. (1995) 4 NWLR (pt. 391) 534, Biariko v. Edeh-Ogwuile(2001) 12 NWLR (pt. 726) 235, Calabar Central Coop. Thrift and Credit Society Ltd. v. Ekpo (2008) 6 NWLR (pt. 1083) 362, therefore the cases (supra) cited by the appellant are distinguishable from this case citing in support the case of Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (pt. 105) 558.
It was also argued that the Court below rightly assumed jurisdiction in the case, as the case was initiated by the process of law, so the argument of the appellant that the respondents should have been punished for abuse of process is academic and should be discountenanced citing in support the cases of Olori Motors Co. Ltd. v. UBN Plc (2006) 10 NWLR (pt. 989) 586, Scirrocco Ind. Ltd. v. Unity Bank Plc. (2016) LPELR 40265 (CA), Plateau State v. A. G., Federation (2006) 3 NWLR (pt. 967) 346 at 393, Akaighe v. Idama (1964) ALL NLR (Reprint) 317 at 322, Mbani v. Bosi (2006) 1 NWLR (pt. 991) 400.
The respondents submitted that the Court below considered the relevant arguments in its ruling particularly in pages 530 – 531, 552 and 587, therefore the appellant was not denied fair hearing with respect to the interpretation of Section 35(6) of the AMCON Act which is discretionary or a right conferred on the 2nd respondent not a duty and that the appellant having not appealed against the aspect of the ruling that the plaintiffs claim succeeds in part the appellants is bound by that part of the ruling and there being no miscarriage of justice, the ruling of the Court below which is not perverse should not be disturbed citing in support the case ofSPDCN v. XM Fed. Ltd. (2007) Vol. 4 WRN 80, Mercantile Bank v. Adalma (1990) 5 NWLR (pt. 153) 745 at 768 769, Unity Bank Plc. v. Bouari (2008) ALL FWLR (pt. 416) 1825, Oloriode v. Oyebi (1984) 1 SCNLR 390, NPA v. Panalpina World Transport (Nig.) Ltd. (1974) 1 NMLR 82, Fabiyi v. Adeniyi (2000) 6 NWLR (pt. 662) 532, Ovunwo v. Woko (2011) 17 NWLR (pt. 277) 522, Ukeje v. Ukeje (2014) 11 NWLR (pt. 1418) 384, Oleksandr v. Lanestar Drilling Co. Ltd. (2015) 9 NWLR (pt. 1464) 337, Blessing v. FRN (2015) 13 NWLR (pt. 1475) 1; and that even if the Court below did not consider Section 35(6) of the AMCON Act, the Court can do so under Section 16 (now Section 15) of the Court of Appeal Act citing in support the case of Okonkwo v. Kpajie (1992) 2 NWLR (pt. 226) 633, Mba v. Agu (1999) 12 NWLR (pt. 629) 1.
The respondents concluded by submitting that the appellant should not be allowed to cast aspersion on the person of the learned trial Judge when it contended that the learned trial Judge helped the respondents in the way he considered the preliminary objection in the judgment appealed against citing in support the cases of Lawan v. Zenon Petroleum and Gas Ltd and Ors. (2014) LPELR 23206, Menakaya v. Menakaya (1996) 9 NWLR (pt. 472) 304, Abiola v. FRN (1995) 7 NWLR (pt. 405) 1; on account of which he urged that the appeal should be dismissed for lacking in merit.
The reply brief filed on 17.06.18, but deemed as properly filed on 18.10.18, re-emphasised the arguments canvassed in the appellants brief of argument adding that upon the Court below finding that the High Court of Justice of Lagos State had jurisdiction in some aspects of the case before it, that Court should have declined jurisdiction in the case citing in support the case ofNigeria Intercontinental Merchant Bank Ltd. v. Union Bank of Nigeria Ltd. (2004) 12 NWLR (pt.888) 599 at 622. For the proposition that a reply brief should not re-emphasise the arguments in the appellants brief but answer only the new issues raised by the respondent in his brief, see Order 19 Rule (5) of the Court of Appeal Rules, 2016.
A decision of a Court is read or considered harmoniously, not by convenient installments as approached by the appellant. SeeAdegbuyi v. A.P.C. (2014) ALL FWLR (pt. 761) 1486 at 1504 or (2015) 2 NWLR (pt.1442) 1, Akaighe v. Idama (1964) ALL NLR (Reprint) 317 at 322, Mbani v. Bosi (2006) 11 NWLR (pt. 991) 400 at 417, Adebayo v. A. G., Federation (2008) ALL FWLR (pt. 412) 352.
The decision of the Court below which is in pages 526 589 of the record as a whole disclosed that the plea of abuse of the process of the Court caught only the leg of claim of receivership with respect to claim of recovery of N620,100,218.02 in suit No. ID/1105/2010 pending at the High Court of Justice of Lagos State.
I agree with the Court below that it is an abuse ofthe process of the Court to file another action before it over the same issue affecting the same parties (parties in his context includes privies).
The Court below was therefore right in dismissing the second action before it for being an abuse of the process of the Court. See the numerous cases (supra) lavishly cited by the appellant on the issue. See also Dumez (Nig.) Plc v. UBA Plc (2006) 14 NWLR (pt. 1000) 515, Osun State IEC v. NCP (2013) 9 NWLR (pt. 1360) 451, Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (pt. 966) 205.
The respondents did not cross appeal against part of the decision of the Court below that the second action for the recovery of the N620,100,218.02 by way of receivership filed at the Court below by the 1st respondent for the 2nd respondent against the appellant which was also pending at the High Court of Justice of Lagos State was an abuse of the process of the Court. The said holding is therefore conclusive and binding on the respondents vide Okotie-Eboh v. Manager (2004) 11 12 S.C. 174 at 193 thus –
It is trite law that a finding against which there is no appeal remains binding and conclusive: See Alakija v.Abdulai (1998) 5 S.C. 1; (1998) 6 NWLR (Pt. 552) 1 at p. 24, Odiase v. Agho (1972) 3 S.C. (Reprint) 69; (1972) All NLR (Pt. 1) 170; Foreign Finance v. L.S.D.P.C. (1991) 1 NSCC 520, P.N. Udoh Trading CD. Ltd. v. Abere (2001) 5 S.C. (Pt. II) 64; (2001) 11 NWLR (Pt. 723) 114 al 146,Yesufu v. Kupper International (1996) 5 NWLR (Pt. 446) 17, Nwabueze v. Okoye (1988) 10-11 S.C. 77; (1988) 4 NWLR (Pt. 91) 664.
See also Amale v. Sokoto Local Government (2012) 5 NWLR (pt.1292) 181 and the series of cases (supra) cited by the appellant on the issue.
It should be reiterated that the Court below did not approbate and reprobate in its decision in the matter. It did not overrule itself. What was decided in its judgment in pages 526 -589 of the record which was adverse to the respondents was that the action before the Court below seeking to recover the sum of N620,100,218.02 was also pending at the High Court of Lagos State which constituted the action before the Court below an abuse of the process of the Court upon which it upheld the preliminary objection in part on that score only.
For clearness, the Court below held in part of its judgment inpages 539- 541 of the record that –
As noted earlier, the aim of suit No. ID/1105/2010 and the instant suit are the same. To the extent therefore, I have no hesitation in finding that this suit -to the extent that it anchors in the alleged indebtedness of Continental Aviation Services Limiteds debt to Fidelity Bank Plc only -is an abuse of the process of process and I so hold.
Be that as it may, the matter is not as simple as that. I see from paragraphs 15, 16, 19 and 20 of the Affidavit of the Plaintiffs in support of the Originating Summons in this suit that this action also predicates on another alleged indebtedness of Continental Aviation Services Limited to Finbank PIc and the alleged corresponding Debenture made between Khadra Nigeria Ltd and Finbank PIc. I have equally carefully looked through the Preliminary Objection of the Defendant. I find that the Defendant’s posture is one questioning the subsistence of this indebtedness and debenture. The propriety of the alleged denture and its validity as well as the subsistence of the alleged debt to Finbank PIc said to be purchased by the 2nd Plaintiff – AMCON – constitute the cardinal issues for appraisal and determination in the substantive Suit as basis for determining whether or not there exists justification for according the Plaintiffs the protection sought in the substantive Suit. I shall do well and decline any invitation to comment on, prejudge or make any finding of the fact of the issue(s) at this interlocutory stage in keeping with established principles. See A.G. (Anambra State) V. Okafor (1992) 2 NWLR (Pt. 224) 396; Oyefeso V. Omogbehin (1991) 4 NWLR (Pt. 187) 596. See also Agbakoba V. Director, S … (.1993) 7 NWLR (Pt. 305).
I therefore find that as there is nothing before me to demonstrate that the aspect of the claim of the Plaintiffs on the alleged indebtedness of Continental Aviation Services Limited to Finbank Plc and the alleged corresponding debenture allegedly involving the Defendant is the subject of any decided or pending action, I fail to find basis for adjudging this action on that score as an abuse of process of Court. The Defendants objection on the point therefore fails and I so hold.”
The holding (supra) of the Court below that the other aspect ofthe action on the alleged indebtedness of Continental Aviation Services Limited to Finbank Plc and the alleged corresponding debenture allegedly involving the appellant is not the subject of any other pending action or decision and thus does not constitute an abuse of the process of the Court was not appealed against and is on that basis binding and conclusive and is also amply supported by the materials in the record earlier referred to by the Court below and is hereby affirmed for being reasonable, warranted and not perverse and in trend with the credible materials placed before the Court below vide BFI Group Corporation v. Bureau of Public Enterprises (2012) 18 NWLR (pt. 1332) 309 to the effect that an appellate Court will not interfere with findings of fact except where wrongly applied to the circumstances of the case or vital documents tendered were jettisoned or the conclusion arrived at was patently perverse or wrong following the cases of Nwosu v. Board of Customs & Excise (1988) 5 NWLR (pt. 93) 225, Nneji v. Chukwu (1996) 10 NWLR (pt. 478) 265. See Okotie-Eboh v. Manager (supra), Amale v. Sokoto Local Government (supra) on the conclusive and bindingeffect of holding/finding not appealed against.
Had the appellant taken or read the decision of the Court below together, the contention that the Court below blew hot and cold at the same time in its decision in the matter would not have arisen. I would reject the said contention accordingly.
When it is said that the 2nd respondent could discontinue an action and bring a fresh action or continue with the action already filed as contained in Section 35(6) of the AMCON Act , the message conveyed is that to avoid multiplicity of actions the 2nd respondent should utilise the said provision; and that had it done so the claim of N620,100,218.02 pending at the High Court of Lagos State would not have been filed in the second action at the Court below over the same grievance involving the same parties. The Court below seeing the multiplicity of that particular action sufficiently penalised the 2nd respondent by dismissing the second action before it which was even dead on arrival vide the cases (supra) cited by the appellant on the issue.
Such then is the panacea for non-compliance with Section 35(6) of the AMCON Act. And nothing further needs be said on the issue, save to emphasise that the Court below alluded to Section 35(6) of the AMCON Act in its judgment in page 530 -531 of the record but did not give it adequate consideration which I endeavoured (supra) to give under Section 15 of the Court of Appeal Act, 2004. There is therefore no miscarriage of justice; more so, the provision is for the benefit of the 2nd respondent who is expected to deploy it to avoid creating multiplicity of actions.
In conclusion, I find no merit in the appeal and hereby dismiss it and affirm the painstaking judgment of the Court below (Obiozor, J.) with N300,000 costs against the appellant in favour of the respondents.
By way of postscript, it is important to stress that learned counsel to the appellant should have been temperate in language in his brief by avoiding the scurrilous remarks on the person of the learned trial Judge who is not in a position to reply to the discourteous remarks.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead judgement by my learned brother JOSEPH SHAGBAOR IKYEGH, J.C.A. in this appeal, I find myself in agreement with the views expressed on and resolution of the issues submitted for decision by the Court. I dismiss the appeal in terms of the lead judgement for all the reasons adumbrated therein, which I adopt.
JAMILU YAMMAMA TUKUR, J.C.A.:I read before now the draft copy of the lead judgment just delivered by my Lord JOSEPH SHAGBAOR IKYEGH J.C.A.and I agree that the Appeal lacks merit and I also join my brother in dismissing same.
Appearances:
Mr. S. Ugwuoke with him, Mr. N. J. InyangFor Appellant(s)
Mr. A. G. Anafi with him, Mr. T. O. BukoyeFor Respondent(s)
