NZE MIKE OKPARA & SON LIMITED & ORS v. FIRST BANK OF NIGERIA PLC (2018)

NZE MIKE OKPARA & SON LIMITED & ORS v. FIRST BANK OF NIGERIA PLC

(2018)LCN/10659(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of January, 2018

CA/B/264M/2016(R)

RATIO

DISCRETION OF THE COURT: MEANING AND NATURE

In plethora of decided cases, it has been held that exercise of discretion, however must always be judicial and judicious. See the case of SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED & ORS. V. CHIEF ISAAC OSARO AGBARA & ORS.(2015) LPELR-25987 (SC). Let me add that discretion in the judicial and legal con means equitable decision of what is just and proper under the fact and circumstance of a particular case guided by the principles of law. See ARTRA INDUSTRIES (NIG) LTD. V. NIGERIAN BANK FOR COMMERCE AND INDUSTRY (1998) 4 NWLR (Pt. 546) 357; SOYINKA V. ONI (2011) 13 NWLR (Pt. 1264) 294. It is trite that the discretionary jurisdiction of the Court forms part of the inherent power that is innate to the Court once it is established.

It is a jurisdiction that vests naturally in a Court by virtue of its creation under the Constitution of the Federal Republic of Nigeria. Therefore, the Courts discretion transcends all legal and equitable and enables the Court to make such orders as it thinks fit. See OLUSOLA V. TRUST PROPERTIES LTD. (2010) 8 NWLR (Pt. 1195) 1. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

ABUSE OF COURT PROCESS: APPLICATION THAT CONSTITUTES ABUSE OF COURT PROCESS

To me, this application before this Court can in all respect be said to constitute an abuse of Court process or forum shopping. It has been held by myriad of cases that the common feature of all cases on abuse of process is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consist of the intention purpose or aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice. It is the inconveniences and inequities in the aim and purposes of the action. See OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (Pt. 966) 205; ALI V. ALBISHIR (2008) 3 NWLR (Pt.1073) 94.

The concept of abuse of process can be identified in the

(a) Instituting a multiplicity of action against the same opponent on the same issues, or a multiplicity of action on same matter between the same parties even where there exists a right to begin the action.

(b) Instituting different actions between the same parties simultaneously in different Courts, even though on different grounds.

(c) When two similar processes are used in respect of the exercise of same right, for example a cross/appeal and a Respondent?s notice.

(d) Where an application for adjournment is sought by a party to an action to bring an application for leave to raise issue of fact already decided by Courts below.

(e) Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. See JIMOH V. STARCO (NIG) LTD (1998) 7 NWLR (Pt. 558) 523; ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCT LTD. (2007) 18 NWLR (Pt. 1066) 319.

In the light of foregoing, I have no hesitation in coming to no other conclusion than that this application constitute an abuse of Court process and forum shopping. Hence it would be most inappropriate, neither judicial nor judicious to exercise the Court’s discretion in the circumstance of the fact of this application in favour of the Applicants.I therefore answer the sole question in the negative and hence my conclusion that the application is unmeritorious and same be and is hereby refused and dismissed. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

JUSTICES

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

Between

1. NZE MIKE OKPARA AND SON LTD
2. MR. JAMES OKPARA
(Joined by the Order of Court on 20/11/2011)
3. MRS. GRACE OKPARA
(Joined by the Order of Court on 20/11/2011) Appellant(s)

AND

FIRST BANK OF NIGERIA PLC Respondent(s)

MUDASHIRU NASIRU ONIYANGI, J.C.A.(Delivering the Lead Ruling): By a motion on notice brought pursuant to Order 4 Rules 5, 6, and Order 7 Rules 3 and 4 of the Court of Appeal Rules 2011, the Appellants/Applicants are seeking for the following orders:
(1) An order of injunction restraining the Respondent/Respondent from enforcing or purporting to enforce the judgment of the High Court of Justice, Edo State or act in any manner pursuant to same, against the Appellants/Applicants pending the determination of the appeal already filed before this Honourable Court.
(2) An order staying the execution of the cost delivered in favour of the Respondent/Respondent by the High Court of Justice, Edo State delivered on the 23rd day of December 2015 pending the determination of the appeal already filed against the said judgment.
And for such further or other orders as the Honorable Court may deem fit to make in the circumstance.

The application is predicated on the following grounds:
(1) That judgment was delivered by the trial Court against the Appellants in this appeal.
(2) That the Appellants have appealed

against the said judgment.
(3) That a similar motion for stay of execution of the said judgment was filed at the Court below but was conditionally granted.
(4) That this application is necessary to stay the execution of the said judgment.

Further to the foregoing, the application is supported by an affidavit of 11 (eleven) paragraphs, photocopy of the Notice of Appeal filed at the trial Court marked as Exhibit ?A?. The copy of the Ruling of the trial Court conditionally staying the execution of its judgment (uncertified) delivered on 7th day of June 2016 in Suit No. B/515/2006 by the Edo State High Court, Benin Judicial Division, Benin City, marked as Exhibit ?B?.

Upon all the foregoing, the Applicants relied in asking the Court to grant the orders sought.
The Respondent filed a counter affidavit of 25 (Twenty-five) paragraphs opposing the application.

?The fact that led to this application as can be gleaned from the supporting affidavit by the Appellants/Applicants is that the Appellant took a loan of the sum of N35,000.00 from the Defendant/Respondent in the year 1996. The loan facility was

increased to N3,000,000.00 and the security for the said credit facility in the executed tripartite legal mortgage is the property situate and being at 40A Ogbeson Street, Benin registered at the Land Registry, Benin City on 29/29/883.

When the Respondent demanded for repayment the Applicant went to Court and purchased a writ of summon christened Suit No B/294M/2005. For lack of diligent prosecution, the suit was struck out. Another Suit was instituted by the Applicants bearing Suit No. B/32/2006. This suit again suffered the same faith as the earlier one.
This led to the institution of this suit No B/515/2006 which decision is the subject of this application. The Applicants failed to establish their claim and hence their claim was dismissed. The Respondent who had joined issue with the Appellants/Applicants, also counter claimed against the Appellants/Applicants as follows:
(1) The sum of N34,411,515.08k (Thirty-four million, four hundred and eleven thousand, five hundred and fifteen Naira, eight kobo) being sum outstanding and/remaining unpaid to the counter claimant as at 24th June 2009.
(2) Interest on the above sum at the rate of

21% per annum from 25th June 2009 until judgment is delivered and 6% from the date of judgment until final liquidation of the judgment debt.
(c) General damages in the sum of N5,000,000.00k (Five million Naira) or in the alternative
(d) An order of this Honourable Court empowering the counter claimant to exercise its power of sale under tripartite mortgage dated 4th day of November 1997 registered as No 29 at page 29 in vol. 883 at the Lands Registry, Benin City.

The matter went on for a period of about nine years and judgment was delivered on 23rd December 2015, granting the Respondent?s counter claim.

Riled by the decision hence the appeal and this subsequent application.

After the judgment by the trial Court, the Appellants/Applicants as a judgment debtor filed an application and asking the trial Court for the following orders:
(1) ?An order of injunction restraining the counter Claimant/Respondent from enforcing or purporting to execute the judgment of this Honourable Court or act in any manner pursuant to same, against the Appellants/Applicants pending the determination of the appeal.
An Order staying the

execution of the cost delivered in favour of the counter Claimant/Respondent by this Honourable Court on the 23rd day of December, 2015 pending the determination of the appeal already filed against the said judgment.
And for such further or other orders as the Honourable Court may deem fit to make in the circumstance?.

Issues were joined by both parties in the application. In a considered ruling delivered by the learned trial judge on 7th day of June 2016, the Court concluded as follows: (See pages 3-4 of ?annexure B?) attached to this application under consideration:
?In paragraph 16, the Applicants again speaking through their counsel claimed to be ready to prosecute the appeal. Going by their antics in this case, which dragged the case on and on for nine years, I do not believe that they are ready to prosecute the appeal diligently. There is no evidence that they have made any move to ensure compilation of records of appeal. Nothing is attached to show that the records have be settled. As I stated earlier, I do not think this Court should make an order that will have the effect of rendering the appeal nugatory. I

have also stated that the Applicants ought to make a commitment. They have not done so. In the circumstances, the application succeeds on the following conditions:
(1) That the applicants shall either produce a Bank Guarantee of the sum of N34,411,515.08k or pay 25% of the said sum to the Assistant Director of the High Court, Benin City who shall deposit same into an interest yielding account pending the determination of the appeal. Upon the determination of the appeal, the Assistant Director shall release the money to the winner of the appeal along with the interest.
(2) The Claimants/Appellant shall pay 50% of the cost awarded against them to the Defendant counter claimant.
(3) The above conditions are to be met within 14 days of (sic) today.
(4) There shall be no order as to costs.?

Regardless of the foregoing granted orders at the instance of the Appellants/Applicants, he still filed this application.
I have carefully read all the processes in support and against this application.

By this application the Appellants/Applicants are calling on this Court to exercise its discretionary power in their favour and

grant the orders therein sought in the motion paper.

Discretion means equitable decision of what is just and proper under the circumstances or a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principles of law. See the old case of DOHERTY V. DOHERTY (1964) 1 ALL NLR 299; AJUWA & ANOR V. S.P.D.C. (2011) 12 S.C. (Pt IV) 118 at 155-156; ARTRA INDUSTRIES NIG. LTD. V. N.B.C.I. (1998) 3 SC, 98 at 118-119.
In plethora of decided cases, it has been held that exercise of discretion, however must always be judicial and judicious. See the case of SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED & ORS. V. CHIEF ISAAC OSARO AGBARA & ORS.(2015) LPELR-25987 (SC). Let me add that discretion in the judicial and legal con means equitable decision of what is just and proper under the fact and circumstance of a particular case guided by the principles of law. See ARTRA INDUSTRIES (NIG) LTD. V. NIGERIAN BANK FOR COMMERCE AND INDUSTRY (1998) 4 NWLR (Pt. 546) 357; SOYINKA V. ONI (2011) 13 NWLR (Pt. 1264) 294. It is trite that the discretionary jurisdiction of the Court forms part of

the inherent power that is innate to the Court once it is established.
It is a jurisdiction that vests naturally in a Court by virtue of its creation under the Constitution of the Federal Republic of Nigeria. Therefore, the Courts discretion transcends all legal and equitable and enables the Court to make such orders as it thinks fit. See OLUSOLA V. TRUST PROPERTIES LTD. (2010) 8 NWLR (Pt. 1195) 1.

Having gone this far, the question is whether or not this court in the contest of this application can exercise its discretionary power and grant the Appellants/Applicants? application?

Going by the antecedent of this application, it is crystal clear that the Appellants/Applicants sought and obtained a conditional order of stay of execution of the judgment of the lower Court appealed against on the 7th day of June 2016. By the ruling of the Court, he was granted 14 days to comply with the condition therein granted. The complaint of the Applicants is that the conditions for the grant of the order of stay by the trial Court was stringent. Hear the Applicants in paragraphs 7 & 8 of their supporting affidavit.
PARAGRAPH 7:<br< p=””

</br<

?That consequent upon the judgment counsel immediately filed a motion dated 15th January 2016 for stay of execution of the said judgment in the Court below.?
PARAGRAPH 8 :
?That the said motion was conditionally granted on the 7th day of June 2016 with some stringent conditions making it impossible for the Applicants to meet within 14 days stipulated in the order which was only gotten on the 30th day of June 2016, copy of the said ruling is herein attached and marked as Exhibit ?B?.
Considering the foregoing deposition by the Appellants/Applicants in their supporting affidavit, they are in this Court because the condition for the grant of the stay of execution by the trial Court is stringent and lack of time to comply. Rather than for the Applicants to approach the trial Court that granted the order to vary the conditions and terms of the grant, they are in this Court asking the Court to independently exercise its judicial discretion and grant an order of stay. Put in another way, they have also not ask this Court to vary the conditions for the order of stay of execution granted by the trial Court. To me, this

application before this Court can in all respect be said to constitute an abuse of Court process or forum shopping. It has been held by myriad of cases that the common feature of all cases on abuse of process is the improper use of the judicial process by a party in litigation to interfere with the efficient and effective administration of justice to the irritation and annoyance of his opponent. An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consist of the intention purpose or aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice. It is the inconveniences and inequities in the aim and purposes of the action. See OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (Pt. 966) 205; ALI V. ALBISHIR (2008) 3 NWLR (Pt.1073) 94.
The concept of abuse of process can be identified in the
(a) Instituting a multiplicity of action against the same opponent on the same issues, or a multiplicity of action on same matter between the same parties even where there exists a right to begin the action.
(b) Instituting

different actions between the same parties simultaneously in different Courts, even though on different grounds.
(c) When two similar processes are used in respect of the exercise of same right, for example a cross/appeal and a Respondent?s notice.
(d) Where an application for adjournment is sought by a party to an action to bring an application for leave to raise issue of fact already decided by Courts below.
(e) Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. See JIMOH V. STARCO (NIG) LTD (1998) 7 NWLR (Pt. 558) 523; ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCT LTD. (2007) 18 NWLR (Pt. 1066) 319.
In the light of foregoing, I have no hesitation in coming to no other conclusion than that this application constitute an abuse of Court process and forum shopping. Hence it would be most inappropriate, neither judicial nor judicious to exercise the Court?s discretion in the circumstance of the fact of this application in favour of the Applicants.

I therefore answer the sole question in the negative and hence my conclusion that the application is unmeritorious

and same be and is hereby refused and dismissed.
A cost of (N50,000.00) fifty thousand Naira is awarded against the Applicants and in favour of the Respondent.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the leading Ruling just delivered by my learned brother, M.N. ONIYANGI JCA. I agree with his reasoning and conclusion that the application is unmeritorious. I refuse same and it is accordingly dismissed.
I abide by the order as to costs.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form of the ruling just delivered by my learned brother, Mudashiru Nasiru Oniyangi, JCA.
I agree with my learned brother that the appellants/applicants? motion on notice is devoid of any merit. For the reasons given by my learned brother, which reasons I adopt as mine, I also dismiss the application.
?I abide by the order as to costs.

Appearances:

Mr. P.O. OsanekiFor Appellant(s)

Not RepresentedFor Respondent(s)

Appearances

Mr. P.O. OsanekiFor Appellant

AND

Not RepresentedFor Respondent