THE ESTATE OF OBA JOHN AGBOLA OJOMO & ORS V. FROZEN FOODS NIGERIA LIMITED & ORS
(2019)LCN/13647(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 14th day of July, 2009
CA/PH/3/2008
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
1. THE ESTATE OF OBA JOHN AGBOLA OJOMO
2. MRS. OLAJUMOKE ADEBIYI (NEE OJOMO)
3. OLORI AINA OJOMO
4. PRINCE ADETUNJI OJOMO
5. CHIEF THOMAS A. SENAIKE Appellant(s)
AND
1. FROZEN FOODS NIGERIA LIMITED
2. ALHAJI HAMZAT AWOKOYA
3. SHUAIB MOHAMMED
4. SALIU OBATAYO AMODU
5. BIOLA AWE
6. HIRO KISHNANI Respondent(s)
RATIO
THE CONCEPT OF ABUSE OF COURT PROCESS
The Supreme Court in the case of: Saraki V. Kotoye (1992) 9 NWLR (264) 156, reviewed its previous decisions on the issue and held per Karibi-Whyte, JSC at 188 – 189 E – B thus:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions.
Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognised that the abuse of process may lie in both a proper or improper use of judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues… Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se.”
See also: Ogojeofo V. Ogojeofo (2006) 3 NWLR (966) 205 @ 220 – 221 C – F; Okafor V. A.G. Anambra State (1991) 6 NWLR (200) 659 @ 681 C – D; A.G. Ondo State V. A.G. Ekiti State (2001) 17 NWLR (743) 706 @ 771; Mobil Producing Nigeria Unltd. V. Monokpo (2003) 18 NWLR (852) 346 @ 430 – 431 E – B; Kolawole V. A.G. Oyo State (2006)3 NWLR (966) 50@ 74 B – D. PER KEKERE-EKUN, J.C.A.
WHETHER OR NOT THE WRIT OF SUMMONS AND STATEMENT OF CLAIM DETERMINES WHETHER AN ACTION IS STATUTE BARRED
As noted earlier, in order to determine whether an action is statute barred, all that is required is to examine the writ of summons and the statement of claim alleging when the wrong was committed, which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See: Aremo II V. Adekanye 2004 13 NWLR 891 572 592 – 593 H -A; Woherm V. Emereuwa (2004) 13 NWLR (890) 398; Savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (49) 212. Aremo’s case (supra), relied upon by learned counsel for the respondent does not advance his position regarding the exception to the limitation law. The Supreme Court in fact held that continuing damage giving rise to a fresh cause of action did not arise in that case. A cause of action has been defined as the fact or combination of facts, which give rise to a right to sue. It includes all things that are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to succeed. See: U.B.N. Plc. V. Umeoduagu (2004) 13 NWLR (890) 352 @ 364 – 365 G – B; Egbe V. Adefarasin (supra); Savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping & Transport Agencies Ltd. (supra) Sanda V. Kukawa Local Government (1991) 2 NWLR (174) 379 @ 390 – 391 H-A. PER KEKERE-EKUN, J.C.A.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court, Port Harcourt Judicial Division delivered on 22/6/06 dismissing the defendants’/appellants’ application filed on 20/10/05 for an order striking out the plaintiffs’/respondents’ suit for lack of jurisdiction.
By a writ of summons and statement of claim filed on 1/8/05, the respondents sought the following reliefs against the appellants:
1. An order directing the defendants to render account of all moneys (sic), rents and benefit whatsoever from all the properties of the plaintiffs company namely:- complete sardine canning plant, located in Trans-Continental Fisheries Complex, Oshodi Apapa Expressway, Lagos; all the Cold Room equipments for the 4,000 – Ton Cold Store including condensing units and evaporator at 57 Trans-Amadi Industrial Layout, Port Harcourt, rents collected from all tenants in the Warehouses at Plot 57 Trans-Amadi Industrial Layout, Port Harcourt and rent from tenants at 4 Bungalows at No. 8 Orominike Street, in Orominike Layout off Olu Obasanjo, Orominike Diobu, G.R.A. Port Harcourt, which they have received or are in their possession from 15th day of December 1990 till judgment is delivered in this suit.
2. An order setting aside any appointment, removal and resignation of any Director made after 15th December 1990 and before 6th May 2004, as such appointment, removal and or resignation were made without proper procedure and consequently null and void.
Upon being served with the processes, the appellants filed a motion on notice on 20/10/ 05 seeking an order striking out the, suit on the following grounds:
1. The action is incompetent and this Honourable Court lacks jurisdiction to entertain same.
2. The plaintiffs claim as pleaded in the Statement of Claim discloses no cause of action.
3. The plaintiff’s claim is statute barred.
4. The suit is frivolous, vexatious, and oppressive and constitutes an abuse of court process.
(See pages 33 – 50 of the record)
The respondents filed a counter affidavit to the application (see pages 53 – 57 of the record). The parties were ordered to file written addresses in support of their respective positions. In a considered ruling delivered on 22nd June 2006, the lower court struck out grounds 1 and 3 of the motion on the ground that the issue of jurisdiction could only be raised after the filing of a statement of defence and in accordance with Order 26 Rule 6 (i) of the Federal High Court (Civil Procedure) Rules 2000. The court also dismissed ground 4 and ordered the appellants to file their statement of defence within 30 days.
The appellants are dissatisfied with this decision. They filed a notice of appeal dated 6/7/06 containing three grounds of appeal. The grounds of appeal, without their particulars are:
1. The learned trial Judge erred in law when she failed to apply and follow the binding decision of the Court of Appeal in the case of AKEGBEJO V. ATAGA (1998) 1 NWLR (534) 459 which upholds the position of the law that the issue of jurisdiction is not a matter to be governed by rules of court.
2. The learned trial Judge erred in law when she assumed jurisdiction to entertain the suit, subject matter of this appeal.
3. The learned trial Judge erred in law when she held that the suit, subject matter of this appeal did not constitute and abuse of court process.
The parties duly filed and exchanged their respective briefs of argument. The appellants’ brief is dated and filed on 14/3/08. They also filed a reply brief dated 20/10/08 and filed on 21/10/08. The respondents’ brief dated 7/5/08 was filed with leave of this Court and deemed filed on 8/10/08. When we heard the appeal on 8/6/09, E.C. Ukala, SAN, leading D.C. Udenne Esq., for the appellants, adopted the appellants’ briefs. In further adumbration of the said briefs, he relied on additional authorities in support of the appellants’ contention that the issue of statute of limitations being an issue of jurisdiction can be raised without the necessity of filing a statement of defence. The cases are: Elabanjo & Anor. V. Dawodu (2006) 6 – 7 SC 24 @ 36; and Arjay V. Airline Management Support Ltd. (2003) 7 NWLR (820) 577 @ 601. He urged us to allow the appeal. O. Wali, SAN, leading N. Nzewi Esq., for the respondents, adopted the respondents’ brief and urged us to dismiss the appeal.
The appellants formulated two issues for the determination of this appeal as follows:
1. Whether the learned trial Judge was right in assuming jurisdiction to entertain the suit on the ground that it was premature to determine the issue of jurisdiction, the defendants/appellants having not filed their statement of defence. (Grounds 1 and 2)
2. Whether the learned trial Judge was right in holding that the suit, subject matter of this appeal did not constitute an abuse of court process. (Ground 3)
The respondents adopted the issues formulated, by the appellants with a slight modification to the first issue thus:
1. Whether the defence of statute of limitation was properly raised by the defendants/appellants and whether the learned trial Judge was right when he held that the application to strike out the suit on grounds that it is statute barred is premature, the defendants not having filed their statement of defence.
2. I am of the view that the issues as formulated by the appellants will sufficiently dispose of the issues in contention in this appeal.
Issue 1
The appellants’ brief was settled by Dike Udenna Esq. He submitted on behalf of the appellants that the issue of jurisdiction being a threshold issue, once raised, must be resolved before any other issue. He relied on: United Agro Ventures Ltd. V. F.C.M.B. Ltd. (1998) 4 NWLR (547) 546 @ 562; State V. Onagoruwa (1992) 2 NWLR (221) 33 @ 46; Mogaji V. Military Administrator Ekiti State (1998) 2 NWLR (538) 425 @ 441; National Electoral Commission V. Uboh (2001) FWLR (55) 501 @ 509 A – B; Turaki V. Dalhatu (2003) FWLR (170) 1379 @ 1405.
Learned counsel submitted that the complaint as to whether or not an action is statute barred involves the question of the jurisdiction or competence of the court to determine the suit. He referred to: Araka V. Ejeagwu (2001) FWLR (36) 830 @ 849 E – F. He submitted further that having regard to the fundamental nature of the issue of jurisdiction, it could be raised at any stage of the proceedings and even for the first time on appeal without leave; that it could be raised by either of the parties or by the court suo motu in order to avoid an exercise in futility.
He submitted that it is of no moment if the appellant raising the issue for the first time on appeal had taken any part in the proceedings before the trial court. In support of this submission, he relied on: Bakoshi V. Chief of Naval Staff (2005) ALL FWLR (248) 1719 @ 1738 G – H; Okoro V. Nigerian Army Council (2000) 3 NWLR (647) 77 @ 90 – 91; -Ajakaiye V. Military Gov. Bendel State (1993) 9 SCNJ 242.
He submitted that the learned trial Judge erred when he held that the appellants ought to have raised the issue of jurisdiction as a point of law under Section 26 Rule 6 (i) of the Federal High Court (Civil Procedure) Rules 2000. He argued that the issue of jurisdiction, being a constitutional issue, is a matter to be raised under the inherent jurisdiction of the court pursuant to Section 6 (6) (a) of the 1999 Constitution. He submitted that the Rules of court are themselves subject to the provisions of the Constitution. He referred to: Okoye V. Nigerian Construction & Furniture Co. Ltd. & Ors. (1991) 6 NWLR (199) 501 @ 540 – 541 C – D; Akegbejo V. Ataga (1998) 1 NWLR (534) 459 @ 469.
Learned counsel submitted that the issue of jurisdiction could be raised at any stage of the proceedings, even when no pleadings have been filed at all or when pleadings are yet to be concluded, as in the instant case where only the statement of claim had been filed. He referred to: National Bank of Nig. Ltd. V. Shoyoye (1977) 5 SC 181 @ 186 & 194; Egbe Shipping and Trading Industry V. Tigris International Corp. (1999) 4 NWLR (637) 70 @ 89, 90 & 91; State V. Onagoruwa (supra) at 54 – 55; Elabanjo & Anor. V. Dawodu (2006) 6 – 7 SC 24 @ 36; and Arjay V. Airline Management Support Ltd. (2003) 7 NWLR (820) 577 @ 601.
In reaction to the submissions on behalf of the appellants, R.C. Oriaku Esq., who settled the respondent’s brief, submitted that the basis of the decision of the lower court was not only non-compliance with the provisions of Order 26 Rule 6 (i) of the Federal High Court (Civil Procedure) Rules 2000, but also on the mandatory provisions of the law. He submitted that the law specifically provides for the manner in which an objection as to limitation of action should be raised, that is, that a defence of limitation must be specifically pleaded. He referred to: Sanni V. Okene Local Government (2005) 14 NWLR (944) 60 @ 74 H; Iheanacho V. Ejiogu (1995) 4 NWLR (389) 324 @ 337 E – H & 338 A. Relying on the decision in Iheanacho V. Ejiogu (supra), learned counsel submitted that the defence of limitation must be raised strictly and in conformity with the provisions of the law, in other words, by pleading same. He conceded that the issue of limitation of action touches on the jurisdiction of the court but contended that it is special specie governed by a mandatory procedure. Relying on the case of: Nwaka V. Head of Service Ebonyi State (2008) 3 NWLR (1073) 156 @ 172 H, he submitted that limitation of action would only affect the jurisdiction of the court when properly raised and proved. He distinguished the authority of State V. Onagoruwa (supra) relied on by learned counsel for the appellants on the ground that while in Onagoruwa’s case, the Court of Appeal refused to entertain the issue of jurisdiction until after briefs had been filed, in the instant case pleadings were yet to be filed.
As noted earlier in this judgment, the appellants filed a reply brief. It is pertinent to state that the purpose of a reply brief as provided for by Order 17 Rule 5 of the Court of Appeal Rules 2007 (formerly Order 6 Rule 5 of the Court of Appeal Rules 2002) is to address all new points arising from the respondents’ brief. It is not to afford the appellants a second bite at the cherry. See: Nwali V. State (1991) 3 NWLR (182) 663; Adebiyi V. Sorinmade (2004) ALL FWLR (239) 933. I shall therefore discountenance any submissions that are a repetition or embellishment of the arguments already advanced in the appellants’ brief. In their reply brief, the appellants contended that contrary to the position taken by learned counsel for the respondents, the decision of this court in Nwaka V. Head of Service Ebonyi State (supra) was to the effect that limitation of action being a matter of jurisdiction could be raised at any stage of the proceedings.
The law is settled that the issue of jurisdiction is fundamental to any competent adjudication. It is the lifeblood of a cause or matter. Any adjudication without jurisdiction is a nullity, no matter how well conducted. See: Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Mark V. Eke 2004 5 NWLR 865 54; Sokoto State V. Kamdex (Nig.) Ltd. (2007) 7 NWLR (1034) 466. It is for this reason that the issue of jurisdiction could be raised at any stage of the proceedings, and once raised must be determined before any further step is taken in the proceedings. See: Madukolu V. Nkemdilim (supra); N.D.I.C. V. 7 NWLR (766) 272; Afro-Continental (Nig.) Ltd. & Anor. V. Co-Operative Association of Professionals Ltd. 2003 1 SCNJ 530; First Fuels Ltd. V. N.N.P.C. (2007) 2 NWLR (1018) 276 @ 300 E – G. A court is competent to adjudicate in a cause or matter when:
1. It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The above requirements must co-exist conjunctively before the court can exercise jurisdiction. See: Madukolu V. Nkemdilim (supra); Skenconsult V. Ukey (1981) 1 SC 6.
The question that arises is whether limitation of action is an issue of jurisdiction, and if so whether it could only be rasied as a point of law in the statement of defence. In my view this issue would fall within the second factor enumerated above in Madukolu’s case (supra). In other the suit but there is a feature that prevents it from exercising its jurisdiction, such as when the claim is statute barred. The facts in the case of Elabanjo V. Dawodu (2006) 15 NWLR (1001) 76, are on all fours with the facts of the present case. Upon being served with the appellants’ statement of claim, the respondents therein without filing their statement of defence filed a notice of preliminary objection before the Lagos State High Court seeking an order dismissing the suit for lack of jurisdiction on the ground that it was statute barred. The trial court struck out the preliminary objection on the ground that the defence of statute of limitation ought to have been raised in their statement of defence. The Court relied on Order 23 of the High Court of Lagos State (Civil Procedure) Rules 1994. An appeal to the Court of Appeal was successful. This Court held that the action was statute barred and dismissed same. Dissatisfied the appellants appealed to the Supreme Court. By a majority decision of 4: 1, the apex court dismissed the appeal. His Lordship, Mahmud Mohammed, JSC held at page 115 B – E:
“The application was plainly brought under the provisions of the Limitation Law Cap 118 Laws of Lagos State, 1994 to challenge the jurisdiction of the trial court that it has no jurisdiction to entertain the appellants’ action for their failure to bring the action within the period of 12 years prescribed by the law. As the respondent being the defendant had perceived that the action as constituted before the trial court against her was not worth defending was perfectly justified in refusing to avail herself of the provisions of Order 23 of the High Court Rules by filing her statement of defence before raising her objection against the jurisdiction of the trial court. This is because the law is trite that an objection that a court has no jurisdiction to entertain a matter or action is certainly not an ordinary point of law contemplated under Order 23 Rules 2 and 3 of the Lagos State High Court Civil Procedure Rules. Issue of jurisdiction is very fundamental. It can be raised at any stage of the proceedings in the High Court, the Court of Appeal and in this court by the parties or suo motu by the court itself… being an issue of jurisdiction, these rules cannot dictate when and how it can be raised.” (Underlining mine)
His Lordship, Ogbuagu, JSC stated thus at page 135-136 H – A:
“…in my humble but firm view, the words “shall be entitled to raise by his pleading any point of law mean clearly and no more than that any party shall not be prevented in any way or manner whatsoever, from raising by his pleading, any point of law. It does not mean to me that the party so entitled must raise the point in his/her pleading. That does not mean in my respectful view, that he must file a statement of defence before he can raise such point of law.”
file a statement of defence before he can raise such point of law.”
His Lordship stated further at page 136 E – G:
“It is now firmly established that a point of law can be raised on a preliminary objection, if the point of law will be decisive of the whole litigation …. Even if it is raised on ground of jurisdiction, the court looks at the plaintiff’s statement of claim and not on the defence … i.e. jurisdiction is determined on the plaintiff’s demand and not on the defendant’s answer… That is why the issue of jurisdiction is decided when the point is taken …”
The Supreme Court in F.R.I.N. V. Gold (2007) 11 NWLR (1044) 1 @ 16 H per Mukhtar, JSC, held that issue of limitation of action borders on the fundamental issue of jurisdiction. It could therefore be raised even for the first time before an appellate court, once leave to do so has been obtained.
The slight difference between the provisions of Order 23 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 1994 and Order 26 Rule 6 (1) of the Federal High Court (Civil Procedure) Rules 2000 is that while Order 23 Rule 1 of the Lagos State Rules provides that “any party shall be entitled to raised by his pleading any point of law…” Order 26 Rule 6(1) of the Federal High Court Rules is couched in more mandatory terms, to wit “A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any act showing illegality) which, if not specifically pleaded might take the opposite party by surprise.” However the purport of the decided authorities of the apex court is that the issue of limitation of action is an issue of jurisdiction and the settled law is that the issue of jurisdiction could be raised at any stage, even for the first time on appeal. It would therefore be erroneous to interpret Order 26 Rule 6 (i) of the Federal High Court (Civil Procedure) Rules 2000 as precluding a defendant from raising the issue by way of preliminary objection with having first filed a statement of defence. This was also the opinion expressed by this court per Denton-West, JCA in Nwaka V. Head of Service Ebonyi State (2008) 3 NWLR (1073) 156 @ (supra) relied upon by learned counsel for the respondents. In the circumstances the learned trial Judge erred in striking out grounds 1 and 3 of the appellants’ application on the ground that the issue of limitation of action was premature, not having been raised in the statement of defence. Accordingly this issue is hereby resolved in favour of the appellants.
Issue 2
The second issue for determination is whether the learned trial Judge was right in holding that the suit, subject matter of this appeal did not constitute an abuse of court process.
It is the appellants’ contention that prior to the institution of the present suit, the 2nd, 3rd, 4th and 5th respondents in this appeal as 1st, 3rd, 4th 5th and 6th defendants had filed a counter claim in suit no. FHC/PH/CS/1478/2004 seeking the same reliefs as contained in suit no FHC/PH/CS/594/2005, from which this appeal arose, which they instituted as plaintiffs.
On what constitutes an abuse of court process, learned counsel for the appellants relied on: Saraki V. Kotoye (1992) 9 NWLR (264) 156 @ 188 – 189; Okorodudu V. Okoromadu (1977) 3 SC 21; Opekun V. Sadiq (2003) FWLR (150) 1654 @ 1661 C – E. He submitted that the categories of acts or circumstances that would constitute an abuse of the process or the use of judicial process to the irritation and annoyance of adverse parties. He relied on: A.G. Ondo State V. A.G. Ekiti State (2001) 17 NWLR (743) 706 @ 771 C – D; Doma V. Adamu (1999) 4 NWLR (598) 311 @ 315 D – F. He faulted the decision of the learned trial Judge at pages 109 – 110 of the record on the following grounds:
i. That the reliefs sought in both suits are not merely related, but the same. He referred to the counter claim as endorsed at page 48 of the record and urged us to compare the reliefs therein to the reliefs sought in the present suit as endorsed at page 2 of the record.
ii. That while the parties on record might appear to be different, the plaintiff/defendant by counter claim in the earlier suit is the 1st plaintiff company in the present suit, and all the defendants/appellants herein were the directors of the plaintiff/ defendant by counter claim in the earlier suit. He submitted further that all the other plaintiffs herein were also defendants/plaintiffs by counter claim in the earlier suit.
Learned counsel contended that a limited liability company, although a juristic person known to law, operates through its human agents and employees. He submitted that a suit against a company must be defended through its directors or human agents. He argued that although the directors are not expressly named as parties in the suit, they are persons interested. He submitted that a person has locus in a matter if he has sufficient or special interest in the performance of the duty sought to be enforced or where his interest would be adversely affected in the suit or where he could be made a party to the earlier suit. He relied on: Albion Const. Ltd. V. RAO Invest. & Pro Ltd. (1992) NWLR (219) 583 @ 593 F – G; Morohunfade V. Adeoti (1997) 6 NWLR (508) 326 @ 335 E – F. He noted that the learned trial Judge, at page 109 of the record, found as a fact that the defendants/appellants are parties sufficiently interested in the affairs of the 1st plaintiff (1st respondent herein). He argued that having so found, the learned trial Judge ought to have appreciated the fact that seeking an order for account against the plaintiff company in one suit, while seeking the same relief in another suit against the defendants/appellants (directors of the 1st plaintiff company) by the same plaintiffs is an abuse of court process. He referred to A.G. Ondo State V. A.G. Ekiti State (supra), and submitted that it should not matter whether both suits were against the defendants directly or indirectly. He argued that any order made in one suit would resolve the subject matter in the other suit. He submitted that it is an improper use of judicial process to seek the same relief or achieve the same purpose in two pending suits.
Learned counsel referred to the notice of discontinuance filed by the Counter claimants in Suit no. FHC/CS/1478/2004 on 21/10/05. It is annexed to the plaintiffs/respondents’ counter affidavit to the motion to strike out suit no. FHC/PH/CS/594/2005. See pages 53 – 57 of the record. He noted that the notice of discontinuance was filed the day after the plaintiffs/respondents had been served with the application to strike out the suit on grounds of abuse of process. He submitted that the notice of discontinuance is a document prepared during the pendency of the suit and was therefore inadmissible and the learned, trial judge ought not to have relied on it. He referred to: Section 91 (3) of the Evidence Act; Adetoro V. Ogo Oluwa (2002) 9 NWLR (771) 157 @ 218 B – E; Nwangwa V. Ubani (1997) 10 NWLR (526) 559 @ 572 E-F; Fawehinmi V. IGP (2000) FWLR (12) 2015 @ 2044. Alternatively he submitted that Exhibit A was ineffectual in terminating the suit without the leave of court, having been filed more than 14 days after the filing of the defence to the counter claim. He referred to Order 30 Rule 2 (2) and leave of court, having been filed more than 14 days after the filing of the defence to the counter claim. He referred to Order 30 Rule 2 (2) and Rule 3 (1) and (2) of the Federal High Court (Civil Procedure) Rules; Minister for Works and Housing V. Tomas Nig. Ltd. (2002) FWLR (124) 456 @ 472 F – G & 484 – 485 H- E.
He submitted that in the absence of a summons or motion on notice for leave to discontinue the suit as provided for by the Rules, the counter claim in suit no. FHC/PH/CS/1478/2004 was subsisting and pending before the Federal High Court. He relied on: A.G. Ondo State V. A.G. Ekiiti State (supra) at 771 C – D.
In reply to the above submissions, learned counsel for the respondents submitted that the plaintiffs/respondents did not require leave to discontinue their counter claim because the suit had not been set down for hearing. He referred to: Ekudano V. Keregbe (2008) 4 NWLR (1077) 422 @ 430 F – H. He submitted further that the appellants were not parties to the counter claim in FHC/PH/CS/1478/2004 and therefore lacks the locus to raise the issue. He relied on: Plateau State V. A.G. Federation (2006) 3 NWLR (967) 346 @ 422 – 423 H – B; Ogunsola V. A.P.P. & Ors. (2003) 9 NWLR (826) 462 @ 488 G – H.
On whether the suit constitutes an abuse of court process, learned counsel submitted that there must be in existence a pending suit with the same parties, seeking the same relief and in respect of the same subject matter. He referred to: Plateau State V. A.G. Federation (supra) at 393 F – G. He referred to the parties in FHC/PH/CS/1478/2004 at page 44 of the record and the parties in FHC/PH/CS/594/2005 and noted that none of the defendants in the later suit was a party in the earlier suit. He also contended that the reliefs sought in the two suits were against different parties. With regard to the appellants’ contention that the defendants who counter claimed against the plaintiff (1st respondent shareholding of the defendants/appellants in the 1st respondent is in dispute and still pending for determination. He contended that until the issue is determined they could not be regarded as directors or shareholders in the Company. He submitted that in any event, in the eyes of the law, the 1st respondent is a body corporate, with a distinct and separate legal personality with a right to sue and be sued in its own name. Relying on Kano State Oil & Allied Products Ltd. V. Kofa Trading Co. Ltd. (1996) 3 NWLR (436) 244 and Ogbodu V. Quality Finance Ltd. (2003) 6 NWLR (815)147 @ 168 B-C, he submitted that it is a legal person distinct from its members or shareholders. He submitted that in the instant case the appellants were never joined as parties to the suit to defend the counter claim with the 1st respondent, and cannot therefore be seen as parties to the suit. He urged us to resolve this issue in favour of the respondents.
In reply, learned counsel for the appellants argued that the very act of filing Exhibit A, the notice of discontinuance for the purpose of taking advantage of the present suit constitutes an abuse of process. He relied on: Olawore V. Olanrewaju (1998)1 NWLR (534) 436 @ 455 E – F. He urged us to resolve this issue in the appellants’ favour.
A convenient place to commence the determination of this issue is to consider the decided authorities on what constitutes abuse of court process. The facts and circumstances of the instant case may then be considered in light of those authorities. The Supreme Court in the case of: Saraki V. Kotoye (1992) 9 NWLR (264) 156, reviewed its previous decisions on the issue and held per Karibi-Whyte, JSC at 188 – 189 E – B thus:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions.
Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognised that the abuse of process may lie in both a proper or improper use of judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues… Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se.”
See also: Ogojeofo V. Ogojeofo (2006) 3 NWLR (966) 205 @ 220 – 221 C – F; Okafor V. A.G. Anambra State (1991) 6 NWLR (200) 659 @ 681 C – D; A.G. Ondo State V. A.G. Ekiti State (2001) 17 NWLR (743) 706 @ 771; Mobil Producing Nigeria Unltd. V. Monokpo (2003) 18 NWLR (852) 346 @ 430 – 431 E – B; Kolawole V. A.G. Oyo State (2006)3 NWLR (966) 50@ 74 B – D.
The appellants’ complaint is based on alleged multiplicity of actions. Their contention is that the parties, subject matter and reliefs in FHC/PH/CS/594/2005 and FHC/PH/CS/1478/2004 are the same or substantially similar to warrant the inference that the court’s process is being used in an improper manner to their irritation and annoyance. The parties and reliefs sought in the respective suits are as follows:
FHC/PH/CS/1478/2004
Frozen Foods (Nigeria) Ltd.
AND
1. Hamzat Awokoya
2. Adolphus Munamuna
3. Shuaib Mohammed
4. Saliu Obatayo Amodu
5. Biola Awe
6. Lalu Baharani
7. Corporate Affairs Commission
COUNTER CLAIM OF 1ST, 3RD, 4TH, 5TH AND 6TH DEFENDANTS
(They are the 2nd – 5th plaintiffs in FHC/PH/CS/594/2005) – page 48 of the record.
1. An order directing the plaintiff to render an account of all moneys (sic) rents and benefit whatsoever from all the properties of the plaintiff company from 15th day of December 1990 to date.
2. An order setting aside any appointment, removal and resignation of any director made after 15th December 1990 and before 6th May 2004 as such appointment, removal and or resignation were made without proper procedure and consequently null and void.
FHC/PH/CS/594/2005 (pages 1 -10 of the record)
1. Frozen Foods (Nigeria) Ltd.
2. Alhaji Hamzat Awokoya
3. Shuaib Mohammed
4. Saliu Obatayo Amodu
5. Biola Awe
6. Hiro Kishnani
AND
1. The Estate of Oba John Agbola Ojomo
2. Mrs. Olajumoke Adebiyi (Nee Ojomo)
3. Olori Aina Ojomo
4. Prince Adetunji Ojomo
5. Chief Thomas A. Senaike
CLAIM:
1. An order directing the defendants to render account of all moneys (sic), rents and benefit whatsoever from all the properties of the plaintiff’s company namely:- complete sardine canning plant, located in Trans-Continental Fisheries Complex, Oshodi Apapa Expressway, Lagos; all the Cold Room equipments for the 4,000 – Ton Cold Store including condensing units and evaporator at 57 Trans-Amadi Industrial Layout, Port Harcourt, rents collected from all tenants in the Warehouses at Plot 57 Trans-Amadi Industrial Layout, Port Harcourt and rent from tenants at 4 Bungalows at No. 8 Orominike Street, in Orominike Layout off Olu Obasanjo, Orominike Diobu, G.R.A. Port Harcourt, which they have received or are in their possession from 15th day of December 1990 till judgment is delivered in this suit.
2. An order setting aside any appointment, removal and resignation of any Director made after 15th December 1990 and before 6th May 2004, as such appointment, removal and or resignation were made without proper procedure and consequently null and void.
What is immediately apparent from the two suits is that the defendants in FHC/PH/CS/594/2005 (appellants herein) are not parties to FHC/PH/CS/1478/2004. In the 2004 suit, 1st respondent herein is the sole plaintiff. Neither the writ of summons nor Statement of claim in the suit was annexed to the application before the lower court. They were also not copied into the record of appeal. This court can not speculate on the content of a process not before it. However by their counter claim the 1st, 3rd, 4th, 5th and 6th defendants contend that they are the legitimate directors of the plaintiff. Consequently they seek an order for account against the 1st plaintiff and an order selling aside certain actions taken by the company in relation to its directors. On the other hand, in FHC/PH/CS/594/2005, the sale plaintiff in the 2004 suit, together with the 1st, 3rd, 4th and 5th defendants instituted the action against a different set of defendants, who are alleged to have been unlawfully appointed as directors by the late chairman of the company. The plaintiffs seek, inter alia, an order directing them to render accounts in respect of all monies and rents realised from the 1st plaintiff’s properties. The 6th and 7th defendants in the 2004 suit are not parties to, the 2005 suit. The 6th plaintiff in the 2005 suit is not a party to the 2004 suit.
There is no doubt that the subject matter in both suits involves the management and control, of the 1st respondent herein, Frozen Foods Nigeria Ltd. The reliefs sought are against different parties. Can the appellants, who were not parties to the 2004 suit wherein the counter claim was filed, contend that the 2005 suit, in which they are defendants, constitutes an abuse of process with regard to their rights or interests? In other words, could the appellants be heard to argue that a counter claim in a suit in which they are not parties was filed to irritate or annoy them? I shall answer this poser anon.
Learned counsel for the appellants has argued that even though not parties to the 2004 suit, the appellants as directors of the 1st respondent are persons interested in the suit. As far as the 2004 suit is concerned the sole plaintiff therein is Frozen Foods Nigeria Ltd. It is a limited liability company with all its attendant legal attributes, including the right to sue and be sued in its own name. It was not for the court, at the stage of determining whether a suit constitutes an abuse of process, to lift the veil of incorporation to determine on the face of the process who the directors and shareholders are. As rightly observed by the learned trial Judge the issue as to whether or not the appellants are directors and/or shareholders of the 1st respondent is an issue in contention to be determined at the hearing of the suit. The argument of learned counsel for the appellants that they are persons interested in the 2004 suit, even though not named as parties, is untenable in the circumstances.
Learned counsel for the appellants has also argued in his brief that the filing of a notice of discontinuance of the counter claim in the 2004 suit is an indication that the defendants therein concede that the 2005 suit is an abuse of process. He also contended that until leave is sought and obtained the notice of discontinuance is ineffective. The competence or otherwise of the notice of discontinuance filed in the 2004 suit does not arise for consideration in this appeal. The proceedings in that suit are not the subject of this appeal and the learned trial Judge did not make any finding in respect thereof. His Lordship held at page 109 of the record:
“The Court will not proceed to rule on the status of this notice when there is no formal application by the 1st plaintiff and 7th respondent to discharge. In fact the 6th and 7th defendants are not parties to this present suit and it will amount to unfair hearing for this court to make a pronouncement on the status of Exhibit A [the notice of discontinuance] without giving 6th and 7th, defendant’s opportunity to be heard.”
The submissions of learned counsel in respect thereof are accordingly discountenanced.
I return to the poser raised earlier. Having found that the appellants were not parties to the earlier suit and that the reliefs sought in the two suits are against different parties, I agree with the learned trial Judge that the subsequent suit filed in 2005 is not an abuse of court process. This issue is resolved against the appellants.
I have held in the course of resolving the first issue in this appeal that the issue of limitation of action, being an issue that affects the jurisdiction of the court, could be raised at any stage of the proceedings. Having raised it as a preliminary issue, and argued same in their respective written addresses, the learned trial Judge ought to have made a finding on the issue one way or the other. The law is settled that in determining whether an action is statute barred, the only material to be considered by the court is the writ of summons and the statement of claim. See: Egbe V. Adefarasin (1987) (NO.2)1 NWLR (47) 1 @ 20 G – H; RINCO, Construction Co. V. Vee Pee Ind. Ltd. (2005) 9 NWLR (929) 85. The writ of summons and statement of claim are at pages 1 -10 of the record. The written address of the applicants (appellants herein) is at pages 66 – 72 of the record. The reply of the respondents (respondents herein) is at pages 73 – 81 while he applicants’ reply on points of law is at pages 90 – 94 of the record. I am of the respectful view that in order to avoid the delay, expense and inconvenience that would be occasioned by an order remitting the suit back to the lower court for the issue to be determined by another Judge of that court, this court by virtue of Section 15 of the Court of Appeal Act, 2004, is in as good a position as the trial court to determine whether the suit is statute barred. See: Narumal & Sons (Nig.) Ltd. V. Niger Benue Transport Co. Ltd. (1989) 2 NWLR (106) 730 @ 742; S.P.D.C. (Nig.) Ltd. V. Perelale & Ors. (1978) 2 SC 183; Ushae V. C.O.P. (2005) 2 NWLR (937) 499 @ 535 D – E.
In their written submissions in support of the application, the applicants relied on Section 16 of the Limitation of Law Cap 80 Laws of Rivers State 2004 to contend that the suit ought to have been commenced within five years of the accrual of the cause of action. Referring to paragraphs 21 (b), (c), (d) and (e) of the Statement of claim they contended that the cause of action arose on 15th December 1990 when, according to the respondents, they (applicants) started receiving rents and other benefits from the properties, subject matter of the dispute. They argued that from 15th December 1990 when it is alleged that they took over exclusive control of the properties and the management of the 1st plaintiff/respondent to 1st August 2005 when the suit was instituted is a period of over 14 years and clearly outside the limitation period allowed by law. Reference was made to paragraphs 14, 20, 21, 22, 23 and 34 of the statement of claim.
It was argued on behalf of the respondents that the claim relates to the duties of the applicants as directors of the 1st respondent under Section 279 of the Companies and Allied Matters Act to render accounts of their stewardship of the company. It was contended that this duty has nothing to do with the propriety of their appointment as directors. It was further argued that even if there was a correlation between the two, it comes under the exception to the limitation law being a continuing obligation. The case of Aremo II V. Adekanye (2004) 13 NWLR (891) 572 @ 593 H was referred to in support of this submission. Referring to the paragraphs of the statement of claim relied upon by the applicants, it was argued on behalf of the respondents that although it is pleaded that Oba Ojomo surreptitiously removed and/or deleted the names of the existing directors and substituted them with the names of his siblings and family members, the 1st respondent did not allege that the substitution took place on 15th December 1990, and therefore the cause of action could not be said to have accrued on that date.
In reply to the respondents’ submissions, it was contended on behalf of the applicants that the exception to limitation of action relied upon in the case of Aremo II V. Adekanye (supra) is to the extent that a fresh cause of action arises from time to time as often as damage is caused, which is not the respondents’ case in the instant suit.
As noted earlier, in order to determine whether an action is statute barred, all that is required is to examine the writ of summons and the statement of claim alleging when the wrong was committed, which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See: Aremo II V. Adekanye 2004 13 NWLR 891 572 592 – 593 H -A; Woherm V. Emereuwa (2004) 13 NWLR (890) 398; Savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (49) 212. Aremo’s case (supra), relied upon by learned counsel for the respondent does not advance his position regarding the exception to the limitation law. The Supreme Court in fact held that continuing damage giving rise to a fresh cause of action did not arise in that case. A cause of action has been defined as the fact or combination of facts, which give rise to a right to sue. It includes all things that are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to succeed. See: U.B.N. Plc. V. Umeoduagu (2004) 13 NWLR (890) 352 @ 364 – 365 G – B; Egbe V. Adefarasin (supra); Savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping & Transport Agencies Ltd. (supra) Sanda V. Kukawa Local Government (1991) 2 NWLR (174) 379 @ 390 – 391 H-A.
Section 16 of the Limitation Law Cap 80 Laws of Rivers State 2004 provides:
16. “No action founded on contract, tort or any other action not specifically provided for in Parts I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.” (Underlining mine)
A careful examination of paragraphs 11, 12, 13, 14, 17, 20, 21, 22, 23 and 33 of the statement of claim would give an insight into when the cause of action arose in this case. It is averred as follows:
11. “The Plaintiffs aver that on or about 6/12/90, late H.R.H. Oba J. A. Ojomo was appointed Chairman of the Board of Directors.
12. The Plaintiffs aver that paragraph 11 above was as a result of certain internal problems which the Plaintiffs had. This also led to the appointment of Chief Alao Aka Bashorun on or about 15/12/90 for a period of one year.
13. The Plaintiffs aver that no Board of Directors Meeting of the 1st Plaintiffs Company was ever held between 15th December 1990 and 5th May 2004.
14. The Plaintiffs aver that the Administrators in breach of the resolution of 15th December 1990, failed, refused and/or neglected to submit any report monthly or quarterly, as agreed nor was any report ever submitted to the Board of Directors for consideration
17. The Plaintiffs aver that all the purported meetings of the Board of Directors of the 1st Plaintiffs Company after 15th December 1990 and before 6th May 2002 including
(a) appointment of Directors
(b) removal and or retirement of Directors
(c) registration of documents at CAC with 7th Defendant
(d) passing of all or any resolution were all, and still are, false and fraudulent for reason of no notice of invitation to the Directors and/or Shareholders and that indeed no meetings were held nor any resolution passed.
20. The Plaintiffs aver that late H.R.H. OBA J.A. Ojomo surreptitiously removed and or deleted all the names of the existing Directors as at 15th December 1990 and substituted same with the names of his siblings and family members namely- Prince Adetunji Ojomo, Mrs. Olajumoke Adebiyi, Olori Aina Ojomo and Chief T.A. Senaike.
21. The Plaintiffs aver that the 1st Plaintiff Company as at 15th December 1990 have (sic) the following assets among others:-
(a) Complete sardine canning plant located in Trans-Continental Fisheries complex Oshodi Apapa Expressway, Lagos
(b) All the Cold room equipments for the 4,000 – tones Cold Store including Condensing Units and Evaporator at 57 Trans-Amadi industrial Layout, Port Harcourt.
(c) Two heavy duty Generator sets at Port Harcourt.
(d) Rent collected from all tenants in the Warehouses at Plot 57 Trans-Amadi Industrial Layout, Port Harcourt.
(e) Rent from tenants at 4 Bungalows at No. 8 Orominike Street, in Orominike Layout off Olu Obasanjo Orominike Diobu, G.R.A., Port Harcourt, Off Olu-Obasanjo Oromueke Diobu, G.R.A. Port Harcourt. (sic)
22. The Plaintiffs aver that H.R.H OBA J.A. Ojomo and his siblings solely and exclusively took over the management of all the 1st Plaintiff Company’s properties – real and personal – since 15th
December 1990 till date rendering no account to any Director or Shareholder of the Company.
33. The Plaintiffs aver that the authentic Board of Director (sic) of the 1st Plaintiff Company was, and still is, the one appointed on 6th May 2004 which meeting was attended by shareholders of the 1st Plaintiff Company.”
The plaintiffs’ claims are set out in paragraph 34 of the statement of claim reproduced earlier in this judgment.
It is clear from the above paragraphs that the cause of action is the alleged illegal take over of the management and control of the 1st plaintiff by the applicants from 15th December 1990. It is the respondents’ contention that the applicants have received rents from or have been in possession of various properties of the 1st plaintiff since 15th December 1990 without rendering accounts in respect thereof. It is also their contention that any appointment, removal and/or resignation of any director made after 15th December 1990 and before 6th May 2004 is null and void. In other words, any act done by the applicants regarding the management and control of the company between 15th December 1990 and 6th May 2004 is null and void. As can be seen from the underlined portions of the pleadings, the touchstone for each and every complaint is 15th December 1990. The cause of action accrued on that date when the existing directors were allegedly removed and replaced by the applicants. The writ of summons and statement of claim were filed on 1/8/05 well outside the five year limitation period prescribed by Section 16 of the Limitation Law. The argument that there is continuing damage giving rise to a fresh cause of action for as long as the applicants fail to render accounts is untenable in the present circumstances. There is nothing in the statement of claim to warrant such an inference. I therefore hold that the respondents’ claim in suit no. FHC/PH/CS/594/2005, filed outside the period of limitation prescribed in the Limitation Law of Rivers State 2004 is statute barred and the lower court has no jurisdiction to entertain it.
In conclusion the appeal succeeds in part. Suit no. FHC/PH/CS/594/2005 before the Federal High Court, Port Harcourt Division is hereby struck out for being statute barred. The parties shall bear their respective costs in this appeal.
TIJJANI ABDULLAHI, J.C.A: I have had the advantage of reading in draft the lead judgment of my learned brother, Kekere-Ekun, JCA. Her Lordship meticulously and exhaustively too treated all the live issues that call for determination in this appeal and rightly resolved all of them the way she did. I entirely agree with her reasoning and conclusions arrived thereat. I have nothing more useful to add. I adopt it (judgment) as mine and allow the appeal in part. I abide by all the consequential orders therein contained including the order as to costs.
EJEMBI EKO, J.C.A: I had the privilege of reading the draft of the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN, JCA. I agree in terms of the judgment that-
i. the abuse of Process alleged by the Appellants, who were defendants, at the trial court, was not made out.
ii. objection to the suit on grounds of jurisdiction can be raised by the defendant even when he has not yet filed his statement of defence. From the face of the statement of claim, in the instant case, it is clear that the suit was statute barred by virtue of section 16 of the Limitation Law of Rivers State.
I have nothing useful to further add to the judgment, which I hereby adopt. The appeal on the issue of abuse of process is hereby dismissed. The appeal however succeeds on the issue of limitation.
That issue is enough to dispose of the entire suit no. FHC/PH/CS/594/2005 before the Federal High Court, Port Harcourt. The suit being statute barred is hereby struck out. I make no order as to costs.
Appearances
E.C. UKALA, SAN with D.C. UDENNE ESQ.For Appellant
AND
O. WALI, SAN with N. NZEWIFor Respondent
