NIGERIA DEPOSIT INSURANCE CORPORATION (LIQUIDATOR, HALLMARK BANK PLC) V. MR. BEN OKEKE & ORS.
(2010)LCN/3754(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of April, 2010
CA/L/861/08
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
NIGERIA DEPOSIT INSURANCE CORPORATION (LIQUIDATOR, HALLMARK BANK PLC) Appellant(s)
AND
1. MR. BEN OKEKE
2. BENIFOR MOTORS
3. RAMMIES NIGERIA LTD
4. REGISTRAR OF TITLES LAGOS STATE Respondent(s)
RATIO
WHETHER OR NOT THE DISMISSAL OF THE MOTION TO REFILE A SUIT CONSTITUTES A BAR TO REFILING THE SAME SUIT AFRESH ON THE SAME SUBJECT MATTER AND BETWEEN THE SAME PARTIES
A suit which has not been heard on the merits could only have been struck out as the lower court did, but could not be dismissed otherwise than on the merits. The effect of the order of striking out is to temporarily remove the case from the court cause list and it could be brought back by either relistment or refiling afresh. The failure of the first option does not foreclose the second one. The preliminary objection against the competence of the suit refiled afresh by the first set of respondents as claimants was misconceived.
It will be pertinent to make it clear and unambiguous that the dismissal of the motion to refile a suit does not constitute a bar to refiling the same suit afresh on the same subject matter and between the same parties. The right to refile timeously a suit that was struck out for want of diligent prosecution is as good as right to file in the first instance which is a matter of right ex-debito justitie. It is not a matter of discretion. The first set of respondents have an unfettered right to go to court seek for redress in respect of rights which they contend they have against the appellant and the second set of the respondents. That is a fundamental right and not subject to the discretion of the court. The Supreme Court in Shugaba v U.B.N. Plc (1999) 11 NWLR (Pt. 627) 459 at 491 paras D-F observed Per Ayoola JSC thus:
“A person who institutes an action is exercising a legal right not subject to the discretion of the court. He cannot be defeated at the threshold of the equitable maxims: ‘He who comes to equity must do equity’ and ‘he who comes to equity must come with clean hands’ as the trial court tried to do in the instant case. This is because the right of a plaintiff to institute an action is not a discretionary right. Therefore, where a court strikes out an action taken in abuse of the process of the court, it is because the right to institute the action has been abused and not because commencement of the action is subject to the discretion of the court.” PER MUKHTAR, J.C.A.
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Lagos State delivered by Onyeabo, J on 17th July, 2008 wherein the appellant’s preliminary objection challenging the competence of a suit filed afresh by the 1st and 2nd respondents, was dismissed.
The 1st and 2nd respondents in the court below were the plaintiffs in suit No. LD/1654/01 against the appellant and the 3rd and 4th respondents as defendants.
The appellant and the 3rd respondent as 1st and 2nd defendants filed a counter claim against the 1st and 2nd respondents, who were the plaintiffs, in addition to their respective statements of defence.
The 1st and 2nd respondents claim was struck out by the lower court on 25th January, 2005 for want of diligent prosecution, and the counter claims filed by the appellant and the 3rd respondent were set down for hearing.
The 1st and 2nd respondents subsequently filed an application dated 27th June, 2006 seeking for relistment of their suit. The lower court heard the application and dismissed it on 11th May, 2007. The 1st and 2nd respondents subsequently refiled their suit afresh on 2nd October, 2007 against which the appellant filed a notice of preliminary objection dated 3rd March, 2008 challenging the competency of the suit as refiled. The appellant’s preliminary objection was heard and the lower court in its ruling delivered by Onyeabo, J. on 17th July, 2008 dismissed the said preliminary objection. The appellant filed a notice of appeal dated 25th July, 2008 and filed on 28th July, 2008 against the dismissal order premised on five grounds, which are reproduced less their particulars as follows:
“1) The learned trial judge erred in law when in holding as he so did that sole issue decided in the ruling of Phillips J. in suit No. LD/1654/2001- Ben Okeke & Anor v NDIC & 2 Ors on the 11th May, 2007 was the question of the re-listing of the claimants’ claims in the suit; and the said decision did not touch on the merits of the substantive suit.
2) The learned trial judge erred in law when he held that the case of Ivbiyaro v Francis (2001) 46 WRN 70 was applicable and proceeded to apply the same in the particular circumstances of this case.
3) The learned trial judge erred in law when he held as he so did that, the institution of the present suit does not constitute an objectionable attempt on the part of the claimants to re-list their claims in suit No. LD/1654/2001 where the claims’ application for orders inter alia for re-listing have been earlier heard on the merits and dismissed by the High Court of Lagos State per Phillips J. in that suit on the 1th May, 2007.
4) The learned trial judge erred in law in failing to pronounce upon and/or make a determination on the issues of incompetency, abuse of process, contempt and/or disobedience of orders of court and want of jurisdiction urged upon the court on behalf of the appellants in the premises of the institution of the claimants’ suit.
5) The learned trial judge’s decision and/or ruling complained of is perverse in that he failed properly to evaluate the material facts and/or evidence on the records and the issues thereon in the premises of the appellants’ notice of preliminary objection and the institution of the claimants suit and proceeded to dismiss the said objection and thereby occasioned a substantial miscarriage of justice to the utmost prejudice of the appellant.”
The appellant raised one issue from each of the five grounds respectively as follows:
“1) Whether an order dismissing an application for orders, inter alia, of extension of time and for re-listing a suit earlier struck out does not touch upon the competency of the said suit and/or operates, until set aside by a court of competent jurisdiction, to estop a claimant from purporting to re-list the same by way of a fresh suit?
2) Whether the decision in the case of Ivbiyaro v Francis 2002) 1 NWLR (pt 747) 33 at 45; (2001) 46 WRN 70 could properly be said to be applicable in the particular circumstances of this
suit?
3) Whether the institution of the present suit and the claims thereon by these claimants does not constitute an objectionable and grievous abuse of process, and ought, thereby be dismissed with substantial costs in favour of the appellant?
4) Whether the trial court did not fail in its duty to pronounce upon and/or make a determination on the issues of incompetence, want of jurisdiction and manifest abuse of process properly raised before it in the premises of the appellant’s said notice of preliminary objection; and, whether such a failure on the part of the trial court has not occasioned a miscarriage of justice to the utmost prejudice of the appellants?
5) Whether the decision and/or ruling of the trial High Court inclusive of the finding therein dismissing the appellant’s said notice of preliminary objection in the particular circumstances of this suit is not perverse; and, ought to be set aside in the entirety?
The respondent however submitted that these five issues amounted to proliferation which I do not agree with. Issues are said to be proliferated when more than one issue is raised from a single ground of appeal. The raising of one issue from each ground of appeal as the appellant did in the appellant’s brief of argument does not constitute proliferation of issues as misconceived by the respondents’ counsel. The respondents’ counsel raised only two issues for determination thus:
“1) What issue was decided in the ruling of Phillips, J.
2) Whether the striking out of the claimant’s claim in LD/1654/01 was a ruling that forecloses the claimants from refiling the suit.”
The respondents’ counsel is of the view that these two issues effectively cover the verbose five issues formulated by the appellant’s counsel, and have brought out concisely the real or germane issues for determination in this appeal. Both the appellant’s and respondents’ issues in the aggregate boil down to one core issue; that is, whether the dismissal of the motion for relistment of suit No LD/1654/01 that was earlier struck out, constitutes a bar to refiling the suit afresh. This singular issue encompassing the multiple issues raised by both parties will be adopted for determination of the real grievance between the parties in this appeal. The learned counsel for the appellant submitted that the ruling delivered on the 11th May, 2007 by Phillips, J decided not just the issue of relistment of suit No. LD/1654/01 but also dealt with substantive issues in the main suit. It was contended that, the court below found in the said ruling delivered on the 11th May, 2007 that the striking out of the 151 and 2nd appellant’s suit on 25th January, 2005 against which there was no appeal, remains valid and unimpeached. The appellant’s counsel further argued on factors to be considered in granting or refusing the application for relistment which is not in issue in this appeal. It will tantamount to engaging in an academic exercise, to countenance such issue.
The learned counsel for the appellant argued extensively on bindingness of the court’s decision on both parties until set aside by an appellate court. However, he has not clearly stated which issue in the substantive suit was decided. The learned counsel for the appellant relied on some judicial authorities to buttress his submissions that the court below decided on both the application for relistment and substantive issues in the main suit. These include Williams v Hope Rising Voluntary Funds Society (2001) 34 WRN 171 at 177-178; Ebba v Ogodo (2001) 17 WRN 95 at 115-116; Fadiora v Gbadebo (1978) 13 S.C. 219 at 228-229. These authorities are on conditions for setting aside judgment and desirability of bringing a litigation to an end. The application of these authorities depends on whether the issues between the parties have been finally decided in the substantive suit No. LD/1654/01. The Supreme Court in Onyeabuchi v INEC (2002) 29 WRN 64 at 77 per Ayoola, JSC observed thus:
“In my view, the test whether an issue has been finally decided for the purpose of establishing a valid plea of issue res judicata does not necessarily always need to be tied to the question whether or not there has been an adjudication on the substantive suit on the merits. Since the question whether or not a court can reopen in a latter case, or even at a later stage in the same case, a question it has decided on a previous occasion, arises in a variety of circumstances, the test most adequate for all occasions, is whether the court which gave the decision can vary, reopen or set aside the decision. If it cannot, the decision is final.”
The appellant’s counsel further relied on Aborisade v Abolarin (2001) 2 WRN 1 at 13 where Onnoghen, JCA (as he then was) held that a default judgment is final as good as any other judgment until it is set aside and operates as res judicata. However, no issue of default judgment arises in this appeal. The court does not go into extraneous issues outside the grounds of appeal and issues arising therefrom.
The learned counsel for the appellant further submitted that the option open for a party whose suit has been struck out was to either apply for relistment or file the suit afresh but not both. See Odu John Holt & Co Ltd (1950) 19 NLR 127; Waterline Nig Ltd v Fawe Services Ltd (2002) 39 WRN 52 at 59.
The appellant’s counsel further submitted that the decision in Ivbiyaro v Francis (2002) 1 NWLR (pt. 747) 33 is inapplicable to the circumstances of the present case contrary to the views of the learned trial judge. He contended that the claimants having had their application for relistment dismissed were thereby estopped from commencing a fresh suit on the same subject matter between the same parties. It is submitted further, that the only option open for the respondents was to appeal against the ruling by which the application to relist the suit was dismissed but could not refile the same suit afresh. The appellant’s counsel noted a three-point distinction between the circumstances of the decision the subject of this appeal and those in Ivbiyaro v Francis (supra) thus:
1) Whereas the appeal Ivbiyaro’s case was against the ruling of High Court declining jurisdiction to entertain an application to relist, this case involves filing of the respondents’ suit afresh after dismissing an application to relist the suit that has been struck out.
2) Secondly, the issue in Ivbiyaro’s case as to whether the decline of jurisdiction to entertain the application for relistment on the ground that the suit was effectively dismissed rather than being struck out was maintainable in that suit, while this appeal does not involve such an issue.
3) Thirdly the decision in Ivbiyaro’s case was premised on the settled legal principle that a party whose suit has been struck out for want of diligent prosecution, default of appearance or on procedural grounds to apply to the court for restoration of his suit to the cause list, which question does not arise in the instant case.
The bottom line issue in the appellant’s counsel submission is that, the court below having heard the appellant’s application for restoration of its case that was previously struck out and having dismissed that application for lacking in merit ought to have upheld the preliminary objection against the refilled suit. It was further submitted that what the lower court did amounted to setting aside its subsisting earlier decision of 11th May, 2007 in suit No. LD/1654/0 1 per Phillips, J. when it had already become functus officio. See Uku v Okumagba (2001) 41 WRN 133 at 152. The appellant’s counsel further submitted that allowing the 1st and 2nd respondents to refile their case afresh tantamount to relisting the same suit the application for which it had earlier dismissed. That in effect, it was further argued, tantamount to an abuse of court process by operating two processes concurrently seeking for the same reliefs between the same parties and on the same subject matter. He cited the case of Agwasim v Ojichie (2004) 7 MJSC 200 at 208 where the Supreme Court held thus:
“It is trite law that the abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways, such as instituting a multiplicity of action on the same subject matter against the same opponent on the same issue or a multiplicity of action on the same matter between the same parties. It also occurs by instituting different actions between the same parties simultaneously in different courts even though on different grounds; where two similar processes are used in respect of the exercise of the same right.”
The emphasis in Agwasim’s case is on the concurrent pendency of two similar processes on the same subject matter between the same parties. In the instant case one process is initiated following the failure of another. The refiling of the suit afresh was put in place after the dismissal of a motion for relistment. The two processes did not co-exist concurrently. The facts and circumstances of the instant appeal are therefore, not the same with those in Agwasim’s case. The core issue here is whether dismissal of an application for relistment of a suit constitutes a bar to refiling the suit afresh.
The learned counsel for the appellant further argued that the lower court had misconceived the issues raised in the appellant’s preliminary objection on refilling the 1st and 2nd respondents’ suit and thereby wrongly perceived the issues raised therein. It was submitted that the decision of the lower court which dismissed the preliminary objection was not borne by the facts before the court. He cited the cases of Moghalu v Wobo (2005) 11 WRN 115 at 133; Overseas Construction C. Nig Ltd & Anor v Creek Enterprises Nig Ltd & Anor (1985) 3 NWLR (pt 13) 407. The appellant’s counsel contended that the real issue for determination before the lower court was whether a party whose application for extension of time and relistment of case earlier struck out could, upon the refusal of such an application, competently commence a fresh suit on the same subject matter. He urged the court to set aside the order of dismissal of the preliminary objection and allowing the 1st and 2nd respondents’ suit to be refiled afresh. In Udengwu v Uzuegbu (2003) 34 WRN 1 at 12 the Supreme Court per Uwaifo, JSC held thus:
“Once a court has misapprehended the nature of the case in respect of which it is required to give a dispassionate and rational decision, the chances are that the decision otherwise reached will be perverse. This is because when an adjudicator fails to discern the real question which he is to consider and decide or answer his reasoning will inevitably be addressed in a collateral matter which is irrelevant, or to an aspect which is beside the point in issue. Such an adjudicator is said to suffer from ignoratio elenchi. ”
The learned counsel for the appellant urged the court to allow the appeal and set aside the ruling of the lower court dated 17th July, 2008 dismissing the appellant’s notice of preliminary objection, and also dismisses the 1st and 2nd respondents’ suit with substantial cost.
The respondents’ counsel, however, submitted that the issue considered by Phillips, J in suit No. LD/1654/01 was the application for relistment as held by Onyeabo, J. The respondents’ counsel argued that Phillips, J simply dismissed the application to relist the suit earlier was struck out for want of diligent prosecution. The dismissal order was, therefore, in respect of the application for relistment before the court as at then. The learned trial Judge Phillips, J. in the ruling delivered on 11th May, 2007 (pages 178-181 of the record) precisely identified the prayers in the application under consideration thus:
“On the date scheduled by this court for the trial of the counterclaims filed by the defendants to commence, the 1st defendant’s counsel informed the court that she has, pending before this court, an application dated 29th September, 2006 which I set down for argument on 13th November, 2006. On that date the claimant’s counsel informed the court that he too had pending motion before this court the instant application which he was allowed to move. It is dated 27th June, 2006 and is brought pursuant to order 30 rule 4 of the 2004 Rules and under the inherent jurisdiction of this honourable Court wherein he is praying this court for the following orders:
i. An order extending the time within which the applicant shall apply to relist this suit which was struck out on 28th May, 2005.
ii. An order relisting this suit which was struck out on the 18th May, 2005.
iii. And for such further order or other order etc.
The learned trial judge Phillips, J. also further identified the issues for determination in the motion and gave reasons for dismissing it as follows:
“Furthermore the claimant has not exhibited any seriousness in wanting to now diligently prosecute this matter by paying the penalty for the late filing of their front loaded processes, neither has he filed an affidavit of compliance as is required by the rules. It is not sufficient to just file late front loaded processes as the court cannot countenance them if the penalty for late filing is not paid.
For the above reasons therefore, I find that there is no merit in the claimants’ application to reIist and same is refused and dismissed with N5,000.00 costs to the 1st defendant only.”
The motion before Phillips, J. and the issues determined m the ruling delivered on the 11th May, 2007 are glaring enough needing no prophetic interpretation. It was clearly an application for relistment and that was precisely what the learned judge dealt with and dismissed for the reasons clearly stated in the ruling. That ruling was only in respect of the motion for relistment and has nothing to do with the 1st and 2nd respondents’ substantive suit No. LD/1654/01 that was earlier struck out.
This puts to question the issue of propriety of the refiling 1st and 2nd respondents’ substantive suit afresh, which the appellant challenged by its preliminary objection and which was dismissed by Onyeabo, J. in his ruling delivered on 17th July, 2008. The appellant’s counsel contended in the reply brief that the dismissal of the preliminary objection and allowing the suit No. LD/1654/01 to be refilled afresh, tantamount to reviewing the decision of Phillips, J. a judge of co-ordinate jurisdiction. The appellant’s counsel cited and relied on the case of R.A.S. Ltd v Akib (2006) 10 MJSC 190 at 204-205. He also submitted and rightly so that issues for determination must arise from the grounds of appeal but has not identified any issue which is not so distilled from a ground or grounds of appeal. The respondents’ issue one is relevant to the core issue for determination as that issue cannot be placed in a water-tight compartment with the dismissal of the preliminary objection against refilling the 1st and 2nd respondents’ suit afresh, which is the subject matter of this appeal. In fact a reply brief is meant to reply to fresh or new issues raised in the respondents’ brief. Order 17 rule 5 of the rules of this court provide thus:
“The appellant may also, if necessary, within fourteen days of the service on him of the respondent’s brief, file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief.”
A reply brief is therefore not a forum for re-arguing the appellant’s case or merely arguing issues which have not arisen from the respondents’ brief. When the appellant’s suit was struck out for want of diligent prosecution, their right to relist or the suit afresh was not foreclosed. The argument of the appellant’s counsel is that when an application for relistment of the suit was dismissed, the door was no longer open for the 1st and 2nd respondents to refile the suit afresh, hence their preliminary objection which as the appellant’s counsel contended, was not rightly dismissed by the court below per Onyeabo, J.
It is not in dispute that the substantive suit was not heard on the merits and that it was merely struck out for want of diligent prosecution. It was also common ground that the appellant had right to either seek for relistment or refile the suit afresh. The main contention of the appellant is that since the application to relist the suit was dismissed, it was no longer open for the 1st and 2nd respondents to refile same afresh. In fact, I have failed to see how the decision on an application to relist the suit could affect the right to refile same. The dismissal of the application for relistment only precludes the appellant from refiling another similar application since it was determined on the merits. By that pronouncement one of the two avenues open to the 1st and 2nd respondents to revive the suit for determination on the merits had become permanently closed. However, there is no apparent reason in fact or in law that whitles down the right of the first set of respondents to refile the suit afresh to seek for determination of the rights claimed therein on the merits, by which either of the parties aggrieved thereby will be entitled to appeal against any pronouncement made by the court below in the substantive suit.
A suit which has not been heard on the merits could only have been struck out as the lower court did, but could not be dismissed otherwise than on the merits. The effect of the order of striking out is to temporarily remove the case from the court cause list and it could be brought back by either relistment or refiling afresh. The failure of the first option does not foreclose the second one. The preliminary objection against the competence of the suit refiled afresh by the first set of respondents as claimants was misconceived.
It will be pertinent to make it clear and unambiguous that the dismissal of the motion to refile a suit does not constitute a bar to refiling the same suit afresh on the same subject matter and between the same parties. The right to refile timeously a suit that was struck out for want of diligent prosecution is as good as right to file in the first instance which is a matter of right ex-debito justitie. It is not a matter of discretion. The first set of respondents have an unfettered right to go to court seek for redress in respect of rights which they contend they have against the appellant and the second set of the respondents. That is a fundamental right and not subject to the discretion of the court. The Supreme Court in Shugaba v U.B.N. Plc (1999) 11 NWLR (Pt. 627) 459 at 491 paras D-F observed Per Ayoola JSC thus:
“A person who institutes an action is exercising a legal right not subject to the discretion of the court. He cannot be defeated at the threshold of the equitable maxims: ‘He who comes to equity must do equity’ and ‘he who comes to equity must come with clean hands’ as the trial court tried to do in the instant case. This is because the right of a plaintiff to institute an action is not a discretionary right. Therefore, where a court strikes out an action taken in abuse of the process of the court, it is because the right to institute the action has been abused and not because commencement of the action is subject to the discretion of the court.”
In the final result the sole issue is resolved against the appellant. The appeal is completely devoid of merit and is accordingly hereby dismissed. The ruling of Onyeabo, J. delivered on 17th July, 2008 dismissing the appellant’s preliminary objection is accordingly affirmed.
Costs assessed at N30,000.00 is awarded to each set of the respondents against the appellant.
CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the lead judgment just delivered by my brother Mukhtar, JCA. I agree that the appeal is devoid of any merit and consequent to which I also dismiss same in the terms of the lead judgment inclusive of costs.
ADZIRA GANA MSHELIA, J.C.A.: I read before now, the judgment just delivered by my learned brother Mukhtar, J.C.A. I entirely agree with the reasoning and conclusion arrived thereat. The preliminary objection against the competence of the suit refiled afresh by the 1st and 2nd respondents was misconceived. The dismissal of the motion to refile a suit does not constitute a bar to refiling the same suit afresh on the same subject matter and between the same parties. A person who institutes an action is exercising a legal right not subject to the discretion of the court. See: Shugaba v. U.B.A. Plc (1999) 11 NWLR (Pt 621) 459.
For this reason and the more detailed reasons contained in the lead judgment, I too dismiss the appeal as lacking in merit. I abide by other consequential orders made therein, inclusive of costs.
Appearances
I. O. Aniakor;
Ife Onyebumuo, MissFor Appellant
AND
Dr. J. E. O. Abugu;
A. I. Ogbodo
I. D. OlatunbosunFor Respondent
