MEKWUNYE v. SEC & ORS (2022)

MEKWUNYE v. SEC & ORS

(2022)LCN/17083(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 04, 2022

CA/ABJ/CV/156/2021

Before Our Lordships:

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Muhammed Lawal Abubakar Justice of the Court of Appeal

Between

DR. CHARLES D. MEKWUNYE APPELANT(S)

And

1. SECURITIES AND EXCHANGE COMMISSION 2. MTN NIGERIA COMMUNICATIONS LIMITED 3. NIGERIAN STOCK EXCHANGE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON ABUSE OF COURT PROCESS

Abuse of the process of the Court is described thus by the apex Court in the case of CPC & ANOR v. OMBUGADU & ANOR (2013) LPELR 21007(SC) per Nguta, JSC as he then was:
“The legal concept of the abuse of the judicial process or the abuse of the proceedings of the Court is very wide. It is of infinite variety and it does not appear that the category can be closed … only a process filed in Court can constitute abuse of Court process”.
This Court in the case of HONEYWELL FLOUR MILLS PLC V. ECOBANK 2019 LPELR-47503 CA also described abuse of the process of the Court as follows per Georgewell, JCA thus:
“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 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.”
It is also explained in the case of OGBORU & ANOR v. UDUAGHAN & ORS 2013 LPELR-20805 SC as follows:
“It involves an improper use of judicial process by a party in litigation, see Agwasim V. Ojichie (2004) 10 NWLR (Pt. 882) 613 at 624-625. Furthermore, the concept is also characterized as an action initiated without a just or reasonable cause. It merely takes an undue advantage of the reason that the process is available for indulgence. It is also a situation where the law is wrongly interpreted for purpose of accommodating actions in bad faith. It impugns the dignity of the Court. Further still, and in the legal parlance, the phrase “abuse of judicial process” is generally employed when a party improperly uses to the irritation and annoyance of his opponent the efficient and effective administration of justice. An example is where a multiplicity of actions on the same subject matter are instituted against the same opponents on the same issues.” PER WILLIAMS-DAWODU, J.C.A.

WHETHER OR NOT AN AN ACTION FOUND ON ABUSE OF COURT PROCESS WILL BE DISMISSED

That being the position, the law is firm that once a matter is found to be an abuse of the process of the Court, it qualifies for that reason, to be dismissed. One therefore cannot but agree with the Court when it dismissed the Appellant’s matter and made no pronouncement on the Appellant’s application for mandatory injunction. PER WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Abuja Division delivered by Hon. Justice F. O. G. Ogunbanjo on December 3rd 2020, wherein the Court dismissed the Suit No. FHC/ABJ/CS/516/2019 by the Appellant (the Plaintiff at the Court below) as an abuse of the process of the Court.

The following are the questions for determination submitted and the reliefs sought by the Appellant at the Federal High Court, Abuja, from where the instant appeal emanated:
1. Whether or not the 1st Defendant/Respondent can approve for listing the shares/stocks of the 2nd Defendant in the 3rd Respondent’s Exchange in view of the pending suit i.e. SUIT NO FHC/L/CS/354/15 at the Federal High Court, Lagos between Dr. CHARLES D. MEKWUNYE, the Applicant herein and 1. LOTUS CAPITAL LIMITED, 2. STANBIC IBTC ASSET MANAGEMENT LIMITED, 3. MTN NIGERIA COMMUNICATIONS LIMITED, 4. HIS HOLDING LIMITED, 5. INT TOWERS LIMITED and the pending appeals i.e. SC/502/2018 and SC/503/2018 at the Supreme Court, between DR. CHARLES D. MEKWUNYE VS. LOTUS CAPITAL LIMITED & 4 ORS, wherein the relief, among others, sought before the Supreme Court is for “AN ORDER OF INJUNCTION restraining the 3rd Defendant (MTN NIGERIA COMMUNICATIONS LTD), its agents servants, privies, employees, licencees, and/or persons acting through and for the 3rd Defendant from listing its shares in the Nigeria Stock Exchange or any globally recognized Stock Exchange pending the final determination of the appeal filed and pending in the Supreme Court, and/or the conclusion of the trial at the Federal High Court if this Honourable Court so orders”

WHEREOF THE APPLICANT PRAYS THIS HONOURABLE COURT AS FOLLOWS:
1. A DECLARATION that the 1st Defendant/Respondent does not have the right to approve for listing in the 3rd Defendant the shares of the 2nd Defendant until the final determination of the pending suit and the appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others.
2. A DECLARATION that the 3rd Defendant does not have the right to place for listing the shares/stocks of the 2nd Defendant in the Nigerian Stock Exchange until the final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others.
3. A DECLARATION that the 2nd Defendant cannot place its shares for listing in the Nigerian Stock Exchange until final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others.
4. AN INTERLOCUTORY INJUNCTION restraining the Defendants/Respondents, their agents servants, privies, employees, licencees, and/or persons acting through and for them from listing the shares of the 2nd Defendant in the Nigerian Stock Exchange pending the final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others.
5. AN INJUNCTIVE ORDER restraining the Defendants/ Respondents, their agents, servants, privies, employees, assignors, licencees and/or persons acting through and for the Respondents from putting up any notice, publication, sign, advert, notice, sign post, sign board or anything whatever which may suggest the listing of the 2nd Defendant/Respondent’s shares in the Nigerian Stock Exchange (3rd Respondent herein) by listing or introduction of Initial Public Offer, pending the final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others.
6. AN INJUNCTIVE ORDER restraining the Defendants/ Respondents, their agents, servants, privies, employees, licencees and/or person acting through and for the Defendants/Respondents from putting up any publication, adverts, signs and/or advertising form, (written, radio, electronic or any form whatsoever) inviting the members of the public to buy or purchase the 2nd Defendant’s shares in any public offer, by listing, by introduction, Initial Public offer or any form whatsoever in Nigeria pending the final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others.
7. AN ORDER of this Honourable Court directing the Defendants/Respondents, their privies, employees, servants, agents, affiliates, assignors, licensors and/or persons acting through and for them to maintain status quo ante regarding the 2nd Defendant (sic) shares in stock pending the final determination of the pending suits and appeals namely SC/503/2018, APPEAL NO CA/L/1349/2016 AND SUIT NO FHC/CS/354 between the Plaintiff/Applicant herein against the 2nd Defendant herein and other parties.
8. An Order of this Honourable Court restraining the 3rd defendant from accepting for listing the shares/securities of the 2nd Defendant on its form pending the final determination of the pending suits and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others.
9. An Order of this Honourable Court restraining the 3rd defendant from listing the shares/securities of the 2nd Defendant on its form pending the final determination of the pending suit and appeals namely: SUIT NO FHC/L/CS/354/15, SC/502/2018 and SC/503/2018 between the Plaintiff/Applicant herein against the 2nd Defendant herein and others.
10. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.

The facts that culminated into this appeal as garnered from the printed Record before this Court are as briefly stated hereunder:
It is the position of the Appellant that he purchased 5000 units of the 2nd Respondent’s (MTN) shares through a private placement in the year 2008 through Stanbic IBTC Asset Management Ltd. as Nominee of the 2nd Respondent and Lotus Capital Limited as its agent. It was agreed that after a period of three (3) years after the purchase, that is the year 2011, the shares purchased would be transferred to an Exit Special Purpose Vehicle (SPV) in exchange for shares in the Exit SPV which shall be a company listed on the Nigerian Stock Exchange (the 3rd Respondent) or any globally recognized Stock Exchange. And that the 2nd Respondent failed or neglected to keep to the said agreement but rather claimed that MTN International is already quoted on Johannesburg Stock Exchange and was not willing to set up another publicly quoted company due to other “tax considerations”. Further that, the Appellant has suffered considerable loss from the several deductions from his investments made by the 2nd Respondent, including the review of nominee fees, management fees and other fees. He claimed that Stanbic IBTC Asset Management Ltd, Lotus Capital Limited and the 2nd Respondent misrepresented facts to him which misled him into purchasing the 2nd Respondent’s shares under the private placement memorandum. He had to institute Suit No. FHC/L/CS/354/2015 but following the ruling of the Court therein, which stayed proceedings and ordered parties to go to arbitration, the Appellant appealed to this Court in Appeal No. CA/L/1349/2016 and thereafter to the apex Court in Appeal No. SC.503/2018.

According to the Respondents, while the Appellant’s Appeals subsist before the apex Court, the Appellant commenced Suit No. FHC/ABJ/CS/516/2019 vide Originating Summons which culminated into the instant appeal and sought to restrain the 2nd Respondent therein from listing the shares on the Nigerian Stock Exchange. They raised objections at the Court below that the suit was an abuse of the process of the Court which the Court sustained and in consequence dismissed the suit.

That decision has led to the instant appeal vide his Notice and Five (5) Grounds of Appeal on January 6th 2021, the Appellant being aggrieved.

RELIEF BEING SOUGHT
To allow this appeal and set aside the judgment of the trial Court of 3rd December, 2020 in its entirety and this Honourable Court should invoke its powers under Section 16 of the Court of Appeal Act, to determine the Originating Summons granting the reliefs claimed therein, with substantial costs to the Respondents.

The parties in compliance with the Rules of this Court filed and exchanged their briefs of argument. The Appellant’s brief dated and filed March 29th 2021 as well as his Replies to the 1st, 2nd and 3rd Respondents filed September 27th 2021 were settled by Dr. Charles Mekwunye Esq. who urged that the appeal be allowed. The 1st Respondent’s brief dated April 16th 2021 and filed June 16th 2021 was settled by Ogechi Ogbonna Esq. who urged that the appeal be dismissed. The 2nd Respondent’s brief dated November 8th 2021 and filed November 9th 2021 was settled by Kigai Zontong Esq. who urged that the appeal be dismissed. The 3rd Respondent’s brief dated July 23rd 2021 and filed August 10th 2021 was settled by Mr. Abiodun Olaleru Esq. who equally urged that the appeal be dismissed.

APPELLANT’S ISSUES FOR DETERMINATION
a. “Whether the trial Court erred in law when he reached the perverse decision that “the subject matter of this suit before this Court is also the shares of the 2nd Defendant” and that the reliefs claimed in the instant Suit No. FHC/L/CS/516/2019 are the same with the reliefs claimed in Suit No. FHC/L/CS/354/15 having regard to the facts of the case and the reliefs before it as presented in the originating summons (Grounds 3 and 4).
b. Whether the refusal of the trial Court to consider all the processes filed by the Appellant before it in response to the preliminary objections raised by the Respondents does not constitute a breach of the Appellant’s right to fair hearing (Ground 2).
c. Whether the trial Court’s refusal to hear and determine the Appellant’s motion for mandatory Injunction dated and filed on the 7th of June, 2020 does not amount to a blatant condonation and tacit approval of all the Respondents’ act of dealing with the res subject matter of a suit before the Federal High Court and appeals before the Supreme Court, which is an act of disrespect and which is contemptuous of the trial Court in particular and the judiciary in general (Ground 5).
d. Whether or not the trial Court was right to have declined jurisdiction to hear this suit on the basis that the action is an abuse of Court in the light of Suit No. FHC/L/CS/354/2015 and the pending appeal Nos. SC/502/2018 and SC/503/2018 when it was abundantly clear that the cause of action in this suit arose in 2019 while that of Suit No. FHC/L/CS/354/2015 arose in 2011 (Ground 1).”

1ST RESPONDENT’S ISSUES FOR DETERMNIATION
1. “Whether the Honourable Court below was right when the Honourable Court found Suit No. FHC/ABJ/CS/516/2019 an abuse of Court process.
2. Whether in view of the finding that the substantive suit filed by the Appellant was an abuse of Court, there was any legal basis for proceeding further with the suit before the Honourable Court below including the preliminary objection and application for mandatory injunction heard with the substantive suit, the suit being the live wire upon which they depend having been found to be an abuse of Court process.”

2ND RESPONDENT’S ISSUES FOR DETERMINATION
1. “Whether having regards (sic) to the materials before the trial Court, the trial Court was right when it found that the Appellant’s suit before it was an abuse of Court process
2. Whether the trial Court did not consider all the processes before it in the determination of the Respondents’ respective Preliminary Objection before the trial Court
3. Whether having regard to the facts on record and the trial Court’s decision dismissing the suit before it for being an abuse of Court process, the trial Court was wrong when it did not consider and determine the Appellant’s Motion for Mandatory Injunction.”
3RD RESPONDENT’S ISSUES FOR DETERMINATION
i. “whether the Court below was right in its judgment when it dismissed the suit having found same to be an abuse of Court process
ii. Whether this appeal is nevertheless not liable to be dismissed in view of the grounds in the Respondents (sic) Notice which the honourable trial Court did not even rely on.”

I have carefully considered the foregoing Issues submitted for the determination of this appeal and having so carefully done, one finds that substantially all the issues are similar in content. I am therefore satisfied that the Appellant’s issues shall justly and fairly determine this appeal.

SUBMISSION ON BEHALF OF THE APPELLANT
The learned Appellant’s Counsel submitted that there is no abuse of the Court process by the Appellant as the parties in the instant suit and the earlier suit are different, the Appellant being the Plaintiff in the two but the Respondents in the earlier are five (5):
1. Lotus Capital Limited
2. Stanbic IBTC Asset Management Limited
3. MTN Nigeria Communications Limited
4. HIS Holding Limited
5. INT Towers Limited

And in the instant are:
1. Securities and Exchange Commission
2. MTN Nigeria Communications Limited
3. Nigeria Stock Exchange

He contended that the reliefs in the two (2) suits must be the same as well as the elements such as similar subject matter and issues must be same for there to be an abuse and in support cited the cases of R- BENKAY NGERIA LTD. V. CADBURY NIGERIA LTD. 2012 LPELR-78820 SC, CHIEF E. A. ADEFEYISAN V. MADAM LATIFAT ODEGBESAN & ANOR. 2020 LPELR 49494 CA and CENTRAL BANK OF NIGERIA V. SAW H. AHMED & Ors 2001 LPELR-837 SC amongst a host of others cited. Therefore, he submitted that the Court was wrong. That, Suit FHC/L/CS/354/15 and Appeals SC/502/2018 and SC/503/2018 were for the declaration of ownership of the shares of the 2nd Respondent bought by the Appellant in 2008 through private placement against the Defendants/Respondents who were either privy to a contract between the Appellant herein and themselves or who are agents, servants assigns of the 2nd Respondent herein. The instant suit on the other hand is to prevent the regulatory bodies, the 1st and 3rd Respondents from allowing the 2nd Respondent, the principal party to the contract in the erstwhile suit/appeal from destroying the res by listing the shares on the floor of the 3rd Respondent.

He argued that the Court’s decision was wrong as it failed to appreciate agents and privies under the law and cited in support the case of PDP & ANOR. V. UMEH & ORS. 2017 LPELR -42023 SC. And that the 1st and 3rd Respondents do not qualify as privies or assigns of the 2nd Respondent, therefore, the Appellant was right to have filed his Originating Summons.

The learned Appellant contended that the Court failed to correctly consider reliefs 1, 2 and 4 in the Originating Summons.

He submitted that the failure of the trial Court to consider applicable paragraphs of the Appellant’s Counter-affidavit and written addresses is tantamount to deprivation of his right to fair hearing as enshrined in the 1999 Constitution. In support, he cited the cases of THE STATE & ORS V. OBA ALAIYELUWA OGUNOYE (THE OLOWO OF OWO) & ORS 1985 LPELR 3209 SC, ASIKA & ORS V. ATIJANYA 2013 LPELR 20895, G.M.O. NWORAH & SONS CO. LTD V. AKPUTA 2010 LPELR 1296 SC and Order 26 Rule 4 of the Federal High Court Rules, 2019 amongst a host of other authorities. And that the failure by the Court to expeditiously hear and determine the Appellant’s Motion on mandatory injunction and as well refer to the rejoinders placed before it by the Appellant is not a mere irregularity as it offends the principle of natural justice and fundamental rights guaranteed by the Constitution. In support he cited the case of PRINCE YAHAYA ADIGUN & ORS V. THE SECRETARY, IWO LOCAL GOVERNMENT & ANOR. 1999 LPELR-179 SC. He therefore, submitted that miscarriage of justice had occasioned, the Court was robbed of its jurisdiction and the entire proceedings should be set aside.

He argued further that the equitable principle that, equity aids the vigilant and not the indolent and the duty as a minister in the temple of justice to uphold the respectability of the Court made him to file the 2nd suit vide the application on June 7th 2019 as well as preserve the res. He cited in support, the cases of BRITTANIA – U NIG. LTD. V. SEPLAT PETROLEUM DEVELOPMENT COMPANY LTD. & ORS 2016 LPELR-40007 SC, UBA V. ASHIMINA LTD. 2018 LPELR-43858 CA and ANI V. NNA & ORS 1996 4 NWLR PT. 440 101. In conclusion, he urged that the appeal be allowed.

SUBMISSION ON BEHALF OF THE 1ST RESPONDENT
The learned Counsel for the 1st Respondent submitted that the Court was right to have found the Appellant’s suit of 2019 an abuse of the process of the Court and that the decision is unassailable in law. He urged this Court to take judicial notice of facts which were found by the Court such as follows:
A. That the 2019 suit sought reliefs to restrain the listing of the 2nd Respondent’s shares on the floor of the 3rd Respondent as served on 1st Respondent on May 16th 2019.
B. The motion pending in Appeal SC/503/2018 is to prevent same listing as filed February 12th 2019.
C. Appeal SC/503/2018 emanated from Suit FHC/L/354/2015.
D. Suit FHC/L/354/2015 was filed by the Appellant to restrain the same listing which is the same res and relief sought in Suit No. FHC/AJ/CS/516/2019.

Further that the Court was correct to have declined jurisdiction on the issue of abuse as well as the fact that it could not share jurisdiction with the apex Court on the same matter pending before the apex Court as well as the pending suit at the High Court.

The learned Counsel argued that abuse of Court as herein covers any and all improper exercise of any alleged legal rights even where such rights exist, irrespective of some difference in the parties sued in each of the suits. And that commencing the suit at the Federal High Court Abuja in 2019, seeking similar reliefs as those before the apex Court, without waiting for the decision of the apex Court on his application in the 2019 suit as well as the earlier suit in 2015 at the Federal High Court Lagos, is an abuse of the process of the Court. Therefore the Court rightly dismissed the Appellant’s suit and properly exercised its judicial discretion, he submitted. In support, he cited the cases of DINGYADI V. INDEPENDENT NATIONAL ELECTORAL COMMISSION NO.2 2010 18 NWLR PT. 1224 P.154. Further he submitted that this Court is also under a constitutional duty to respect matters pending before the apex Court and not interfere with the res in any application and referred to Section 235 of the 1999 Constitution and the cases of SANI V. KOGI STATE HOUSE OF ASSEMBLY & ORS 2021 6 NWLR PT. 1773 P. 422, MAKINDE V. AKINWALE 1995 6 NWLR PT. 399 P.1 and AGIP NIGERIA LIMITED V. AGIP PETROL INTERNATIONAL & ORS 2010 5 NWLR PT. 1187 P. 348.

He argued that on October 14th 2020, the Court below heard the substantive suit, preliminary objections by the Respondents which challenged the jurisdiction of the Court and all the applications by the parties and is deemed in law to have taken judicial notice of them all. And cited in support the cases of INAKOJU V. ADELEKE 2007 4 NWLR PT. 1025 P. 423, GARUBA V. OMOKHODION 2011 15 NWLR PT.1269 P. 145 and Order 29 Rule 1 of the Federal High Court Rules 2019. He submitted that the dismissal of a substantive suit dispenses with any pending applications therein as the suit is the live wire upon which the applications exist and cited in support the cases of NWABUEZE V. NWORA 2017 NWLR PT. 1277 P. 699, MADUKOLU V. NKEMDILIM 1962 2 NSCC 34 and ARUEZE V. NWAUKONI 2019 5 NWLR PT. 1666 P.469. That the Court was not under any obligation to make distinct pronouncements on the application for mandatory injunction and there was no denial of the right to fair hearing under Section 36 (1) of the 1999 Constitution. In conclusion, he urged that the appeal be dismissed and to uphold the decision of the Court below.

SUBMISSION ON BEHALF OF THE 2ND RESPONDENT
The learned 2nd Respondent’s Counsel submitted that the Court was right when it held that the Appellant’s suit was an abuse of the process of the Court having been filed during the pendency of the Appellant’s suit FHC/L/354/2015, Appeals SC.502/019 and SC. 50333/2019, Motion on Notice of February 12th 2019 and with the same subject matter, the 2nd Respondent’s shares. In support he cited the cases of SARAKI & ANOR. V. KOTOYE 1992 LPELR-3016 SC 33, BUKOYE V. ADEYEMO 2017 1 NWLR PT. 1546 P. 173 and IN RE: NIMASA 2019 LPELR-48872 CA P. 26. He submitted that the fact is indisputable that the following are pending, Suit No. FHC/L/CS/354/2015 in respect of the shares of the 2nd Respondent, two (2) appeals, SC.502/2018 and SC.503/2018 emanated from the matter before the Federal High Court in Lagos. And that subject matter of the suit before the Federal High Court Abuja, the Court below is also the shares of the 2nd Respondent as well as Motion pending before the apex Court filed February 12th 2019 for an order of injunction to restrain the 3rd Respondent from listing the shares of the 2nd Respondent on its floor. He argued that the Appellant did not have a right to file and maintain two (2) separate processes or actions before different Courts seeking the same purpose against the same party and cited the case of AGWASIM V. OJICHIE & ANOR. 2004 10 NWLR PT. 882 613 and DINGYADI V. INEC NO. 1 supra. He therefore submitted that the causes of action in the two sets of proceedings are the same as they are hinged on intention or attempts by the 2nd Respondent to list its shares on the Nigerian Stock Exchange. He asserted that the party who is the target of the two actions is the same, the 2nd Respondent and that the Appellant did not need to file a separate action in order to bound the 1st and 3rd Respondents as the order of restraint from the apex Court was capable of binding all the persons involved in the listing of the 2nd Respondent’s shares and cited in support the case of JIBRIN & ORS V. SHAIBU & ORS 2018 LPELR-47109 CA P. 24.

The learned Counsel submitted further that the Court adequately considered all the processes by the parties as seen in the Record and the judgment of the Court. In consequence, the Appellant’s contention that his right to fair hearing was breached is not supported by the Record of Appeal and in support cited the cases of MAGAJI V. NIGERIAN ARMY 2008 LPELR-1814 SC 40. That the allegation of breach of right to fair hearing is not a magic wand to be used at any instance to vitiate the decision of the Court but must be established and cited the cases of MAGIT V. UNIVERSITY OF AGRICULTURE MAKURDI 2005 19 NWLR PT. 959 211, OLOWU V. NIGERIAN NAVY 2011 10 NWLR PT. 1279 659 and UGO-NGADI V. FRN 2018 LPELR-43903 SC. He argued that the judgment of a Court cannot be vitiated only on account of the style adopted by the Court and in support cited the case of UZUDA & ORS V. EBIGAH & ORS 2009 LPELR-34588 SC P. 23. Further that the Appellant failed to show the violation of his right as alleged and the miscarriage of justice occasioned to him by the style the decision was written.

The learned 2nd Respondent’s Counsel submitted that the order of dismissal by the Court after finding that the suit was an abuse of the process of the Court did not permit it to proceed to determine any application before the Court. And that the issue of abuse is a threshold one and goes to the root of the Court’s jurisdiction and in support cited the cases of OBIDIGWE V. IGWEMMA & ORS. 2019 LPELR-47470 CA P. 11 and USMAN V. BABA 2005 5 NWLR PT. 917 113 CA P. 132. In conclusion, he urged that the appeal be dismissed for lack of merit and to uphold the decision of the Court below.

SUBMISSION FOR THE 3RD RESPONDENT
The learned 3rd Respondent’s Counsel submitted that the reliefs being sought in Suit FHC/L/CS/354/15 which is on appeal at the apex Court and those being sought in the suit in Federal High Court Abuja which culminated into this appeal are feature of forum shopping and abuse of the process of the Court and the Court was right to decline jurisdiction. In support he cited the cases of MADUKOLU V. NKEMDILIM supra and ADESOKAN & ORS V. ADEGOROLU & ORS 1997 LPELR-151 SC.

He argued that the Appellant has no locus standi to commence the pending suit against the 3rd Respondent and that the Appellant has no legal title in the subject shares of the suit as the rights in them are in Lotus Capital Limited. That, the Appellant is a busybody without any claim to any beneficial interest in the 2nd Respondent and cited in support the cases of NYESOM V. PETERSIDE 2016 7 NWLR PT. 1512 452, B. B. APUGO & SONS LIMITED V. S.O. H.M.B 2016 13 NWLR PT. 1529 206 and ARUBO V. AIYELERU 1993 3 NWLR PT. 280 126.

He contended that the Appellant’s Originating Summons was not issued as a concurrent process nor was it endorsed as specified in Sections 97 and 98 of the Sheriffs and Civil Process Act CAP S6 Laws of the Federation, nor was the leave of the Court sought and obtained prior to the service of the Originating Summons outside the jurisdiction of the Court.

He argued further that it is the Investments and Securities Tribunal that has exclusive jurisdiction in the matter by the provision of Sections 284 and 315 of the Investment and Securities Act CAP 124 LFN 2007 and cited in support the cases of CENTRAL SECURITIES CLEARING SYSTEMS LTD. V. NMA INVESTMENTS & SECURITIES LTD. 2018 LPELR-44706 CA and WEALTHZONE LTD. V. SEC 2016 LPELR-41808CA.
In conclusion, he urged that the appeal be dismissed as lacking in merit.

THE POSITION OF THE COURT
I have very carefully considered all the processes filed by the parties herein for and against this appeal and having very carefully done, I shall commence with the consideration of Issues A and D together with the findings of the Court below. For ease of reference the issues will be reproduced hereunder.
ISSUE A
“Whether the trial Court erred in law when he reached the perverse decision that “the subject matter of this suit before this Court is also the shares of the 2nd Defendant” and that the reliefs claimed in the instant Suit No. FHC/L/CS/516/2019 are the same with the reliefs claimed in Suit No. FHC/L/CS/354/15 having regard to the facts of the case and the reliefs before it as presented in the originating summons”.
ISSUE D
“Whether or not the trial Court was right to have declined jurisdiction to hear this suit on the basis that the action is an abuse of Court in the light of Suit No. FHC/L/CS/354/2015 and the pending appeal Nos. SC/502/2018 and SC/503/2018 when it was abundantly clear that the cause of action in this suit arose in 2019 while that of suit No. FHC/L/CS/354/2015 arose in 2011”

The Court below found as contained on page 1935 of the Record that:
1. “There is a suit pending at the Federal High Court, Lagos, SUIT NO. FHC/L/CS/354/2015 in respect of the shares of the 2nd Defendant before it.
2. There are two (2) appeals pending at the Supreme Court, Appeal Nos. SC/502/2018 and SC/503/2018 emanating from the matter before the Federal High Court, Lagos Judicial Division in the said SUIT NO. FHC/L/CS/354/2015.
3. The subject matter of the suit at the Federal High Court, Lagos SUIT NO. FHC/L/CS/354/2015 is the shares of the 2nd Defendant before this Court.
4. The subject matter of the suit before this Court is also the shares of the 2nd Defendant.
5. There is a Motion pending before the Supreme Court dated 11th of February, 2019 and filed on the 12th of February, 2019 for an Order of Injunction to restrain the 2nd Defendant before this Court and any person acting through or for the 2nd Defendant before this Court from listing the shares of the 2nd Defendant before this Court in the 3rd Defendant. See Exhibit 23 attached to the Plaintiff’s Originating Summons.”

The Court further found thus on the same page 1935 of the Record:
“I have looked critically at the said Motion for Interlocutory Injunction dated 11th February, 2019 and filed on the 12th of February, 2019 pending before the Supreme Court.
The rhetoric questions abusing the mind of the Court are as follows;
1. What is the effect and consequence of the prayers in the Motion on Notice for injunction pending at the Supreme Court?
2. What is the effect and consequence of the prayers in the Originating Summons pending before this Court?”

In answer to the foregoing questions the Court had this to say on page 1936 of the Record: “No matter how it is presented before this Court, the answers to the above two (2) questions is that the effects and consequences of the prayers before the Supreme Court and this Court are both to restrain the 2nd Defendant and any person, such as the 1st Defendant, acting through or for the 2nd Defendant from listing the shares of the 2nd Defendant in the 3rd Defendant.
The subject matter of the Motion pending before the Supreme Court is the same as the subject matter of the Originating Summons pending before this Court which simply put is to stop the shares of the 2nd Defendant from being listed by the 1st Defendant on the floor of the 3rd Defendant.”

The Court opined thus on page 1936 of the Record as a result of its finding:
“The Plaintiff having filed that Motion before the Supreme Court ought to have waited for a decision from the Supreme Court and not institute another fresh action on the same subject matter in respect of the same shares of the 2nd Defendant before this Court.
This Court cannot share jurisdiction with the Supreme Court and cannot consequently determine an issue already pending before the Supreme Court or make orders in respect of an issue that is pending before the Supreme Court.”

Having taken the pains and calmly to read through all the processes before this Court filed by the parties, one agrees with the Court below that the issue whether or not the Appellant’s suit is an abuse of the process of the Court stands out amongst any other issues in their submission and for what it entails must be given priority and dealt with first hereinbefore any other questions raised.

Therefore, the pertinent question is whether or not the Appellant’s suit of 2019 is an abuse of the process of the Court below as found by the Court.

In order to properly and with ease compare the subject matter and contents of the previous suit at the Federal High Court, Lagos and the two (2) appeals pending before the apex Court, the reliefs being sought at those Courts are hereunder reproduced.

The following are the reliefs sought by the Appellant at the Federal High Court, amongst others:
(h) “A Declaration that the Defendants cannot by any Agreement change the character and nature of the Plaintiff’s investment from MTN Linked Units any other form of investment in any other company or companies or in the combination of 3rd, 4th or 5th Defendant (sic).
(i) A Declaration that the Plaintiff is entitled to be registered by the 2nd Defendant as the holder of 5000 units MTN Nigeria Linked Units.
(j) A Declaration that the act of the 3rd, 4th & 5th Defendants that will change the character and form of the Plaintiff’s investment in the MTN Linked Unit amounts to an inducement to the 1st and 2nd Defendants to breach the contract between the Plaintiff and the 1st & 2nd Defendants.
(q) An Order of this Honourable Court restraining the 3rd defendant from divesting its shares either to the 4th or 5th Defendants and/or any other company that will necessitate any change in the character and form of the Plaintiff’s investment of 5000 Units of MTN Nigeria Linked units.
(r) An Order directing the reversal of any change in the Character and form of investment of the Plaintiff in the MTN Linked units to any other investment in any other company or combination of companies.
2. Whether any action of the 1st Defendant listing the shares/stocks of the 2nd Defendant for sale in the 3rd Respondent Exchange by introduction or Initial Public Offer or otherwise offering the 2nd Respondent’s shares to the public is proper and valid in law in view of the listed suit and appeals and the reliefs sought under issue 1 above?”

The relief being sought amongst others vide the appeals at the apex Court:
“AN ORDER OF INJUNCTION restraining the 3rd Defendant (MTN NIGERIA COMMUNICATIONS LTD), its agents servants, privies, employees, licencees, and/or persons acting through and for the 3rd Defendant from listing its shares in the Nigeria stock exchange or any globally recognized stock exchange pending the final determination of the appeal filed and pending in the Supreme Court, and/or the conclusion of the trial at the Federal High Court if this Honourable Court so orders.”

See pages 3, 4, 5, 6 and 7 of Volume 1 of the Record and pages 1930-1934 of Volume 3 of the Record before this Court.

One has reproduced the foregoing for ease of reference, comparison and better appreciation of the contents and reliefs contained in the prayers and orders being sought at the Federal High Court, Lagos, the appeals at the apex Court and the reliefs before the Federal High Court, Abuja, from where the instant appeal has emanated.

Abuse of the process of the Court is described thus by the apex Court in the case of CPC & ANOR v. OMBUGADU & ANOR (2013) LPELR 21007(SC) per Nguta, JSC as he then was:
“The legal concept of the abuse of the judicial process or the abuse of the proceedings of the Court is very wide. It is of infinite variety and it does not appear that the category can be closed … only a process filed in Court can constitute abuse of Court process”.
This Court in the case of HONEYWELL FLOUR MILLS PLC V. ECOBANK 2019 LPELR-47503 CA also described abuse of the process of the Court as follows per Georgewell, JCA thus:
“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 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.”
It is also explained in the case of OGBORU & ANOR v. UDUAGHAN & ORS 2013 LPELR-20805 SC as follows:
“It involves an improper use of judicial process by a party in litigation, see Agwasim V. Ojichie (2004) 10 NWLR (Pt. 882) 613 at 624-625. Furthermore, the concept is also characterized as an action initiated without a just or reasonable cause. It merely takes an undue advantage of the reason that the process is available for indulgence. It is also a situation where the law is wrongly interpreted for purpose of accommodating actions in bad faith. It impugns the dignity of the Court. Further still, and in the legal parlance, the phrase “abuse of judicial process” is generally employed when a party improperly uses to the irritation and annoyance of his opponent the efficient and effective administration of justice. An example is where a multiplicity of actions on the same subject matter are instituted against the same opponents on the same issues.”

Three (3) essential ingredients which the Courts over time have assisted themselves with when considering whether or not a suit is an abuse of the process of the Court are as follows:
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. See the cases of OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (PT. 966) 205 SC and HONEYWELL FLOUR MILLS PLC V. ECOBANK (2019) LPELR-47503 (CA).

As it is the settled position of the law, the concept of abuse of the process of the Court is not only in the multiplicity of actions, even where the party has a right of action but also in the manner employed for the exercise of the right of the party who is exercising such right.

In the light of the foregoing and having very carefully considered the processes for and against by the parties herein, the foregoing reliefs being sought in afore stated suit and appeals as well as Suit FHC/ABJ/CS/516/2019, the latest filed by the Appellant which culminated into this appeal along- side afore stated three (3) essential ingredients for determination whether or not there is an abuse of the Court’s process, one is of the considered view and humbly that the process of the Court has been abused by the Appellant. It is important to state that from the pending matters filed by the Appellant, it may appear that the parties are not the same, in my view and humbly, all the parties in all the pending matters are connected one way or the other particularly with the subject matter, the 2nd Respondent’s shares and the one main prayer of restraint against listing or dissipating the shares. One is unable to disagree with the finding of the Court below.

That being the position, the law is firm that once a matter is found to be an abuse of the process of the Court, it qualifies for that reason, to be dismissed. One therefore cannot but agree with the Court when it dismissed the Appellant’s matter and made no pronouncement on the Appellant’s application for mandatory injunction.

I am also unable to find that the right of the Appellant to fair hearing has been denied in any way. Indeed, the Court is not permitted to blow hot and cold, cannot approbate and reprobate. To have held that there was abuse automatically precluded the Court from entertaining the matter any further and to what end would the Court have proceeded.

In the result, this appeal cannot be allowed it fails and is accordingly hereby dismissed. In consequence, the judgment of the Court below delivered on December 3rd 2020 by Hon. Justice F. O. G. Ogunbanjo is hereby affirmed.

ADEBUKOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had read through the draft copy of the judgment just delivered by my learned brother, WILLIAMS DAWODU, JCA, and found that Her Lordship resolved all the issues involved in this appeal properly.

It is clear that the definition of what constitutes an abuse of Court process is ad infinitum. That means, depending on the special circumstances of a case instituted afresh and anew, whether or not it will amount to an abuse of Court process, the facts, and evidence, both documentary and orally adduced before the Court needs to be carefully perused.

I am satisfied that my learned brother has carefully and thoroughly set out the claims in the respective Courts’ cases as well as the reliefs sought, and in my respectful view, arrived at the inevitable conclusion that they were connected and to the same effect.

As regards the submission that the Appellant herein will be denied fair hearing, I am satisfied based on the reasoning set out in the main judgment that such breach did not occur. Therefore, I without hesitation abide by the judgment delivered by my learned brother and accordingly dismiss this appeal.

To this end, the judgment delivered by Honorable Justice F.O.G. Ogunbanjo on the 3rd of December 2020 is hereby affirmed by me.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother, E. O. WILLIAMS-DAWODU, JCA in this matter. I agree entirely with his Lordship’s argument and conclusion that the appeal be dismissed.