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THE VESSEL MT. SYLLA & ANOR v. GHANA COMMERCIAL BANK LTD & ORS (2021)

THE VESSEL MT. SYLLA & ANOR v. GHANA COMMERCIAL BANK LTD & ORS

(2021)LCN/15629(CA)

In The Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 31, 2021

CA/L/879/2016

Before Our Lordships:

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. THE VESSEL MT. SYLLA 2. GLOBAL ENERGY S. A. APPELANT(S)

And

1. GHANA COMMERCIAL BANK LIMITED 2. MESSRS. VISH ASHIAGBOR & MR. ERIC NANA NIPAH, (1st & 2nd Respondents Substituted by Order Of Court Dated 11/4/2019) 3. UT. FINANCIAL SERVICES LIMITED RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON “ABUSE OF COURT PROCESS”

My lords, the term ‘abuse of Court process’ is often seen to be synonymous with multiplicity of Suits or of Court processes, but though, that in a way is a correct proposition of the law yet, abuse of Court process is much more than mere multiplicity of suits. In other words, multiplicity of Suits or processes is not the only way by which abuse of Court process could be constituted. Simply put, and for lack of a precise or concise definition of the term ‘abuse of Court process’ denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus, it can safely pass as a doctrine of law without any precise or concise definition.
The above position of the law is rightly and arguably so because, what would constitute or amount to abuse of Court process is very diverse, imprecise and thus, subject to infinite or indefinite considerations. In considering whether or not an action or process constitutes an abuse of Court process, the Court is to critically consider the peculiar facts and circumstances of each case in which the issue of abuse of Court process is raised to determine whether in the peculiar circumstances of the affected case, the act of the party complained of constitutes an abuse of Court process. Happily, over the years, authorities have become legion as are replete in the law reports providing some form of guide in carrying out the consideration of whether or not an abuse of Court process has been occasioned by the process of a party. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156. See also Daniel V. FRN (2014) 8 NWLR (Pt. 1410) 570; Harriman V. Harriman (1989) 5 NWLR (Pt. 1199) 6; Ukachukwu V. PDP (2014) 4 NWLR (Pt. 1396) 65; CPC V. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (Pt. 1066) 319; Adesokan V. Adegorolu (1991) 3 NWLR (Pt. 179) 293; Umeh V.Iwu (2008) 8 NWLR (Pt. 1089) 225; Dana Airlines Ltd V. Amiaka & Ors (2017) LPELR – 43050 (CA). PER GEORGEWILL, J.C.A.

WHETHER OR NOT WHEN A PARTY FILES ANOTHER SUIT BEFORE ANOTHER COURT ON THE SAME SUBJECT MATTER IS AN ABUSE OF COURT PROCESS

In law it is also true, as aptly and unassailably submitted by learned counsel for the Appellants that where there is a legal right to bring an action, the state of mind of the person exercising the right cannot affect the validity or propriety of its exercise since accessibility to a Court of law to vent one’s real grievance is generally regarded as a hallmark of democracy.

It is also true that, it is not the law that, once a party files another Suit before another Court on the same subject matter, there is an abuse of Court process since an act can give rise to different issues and a subject matter may very well also give rise to different rights capable of being enforced in a Court of law. In all of these circumstances, such multiple Suits would not constitute an abuse of Court process. See Kubor V. Dickson (2013) 4 NWLR (Pt. 1345) 552; Dapianlong V. Dariye (2007) 8 NWLR (Pt. 1036) 262; A.G. Anambra State V. Okeke (2002) 12 NWLR (Pt. 782)593.  PER GEORGEWILL, J.C.A.

WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY TIME OR STAGE IN A PROCEEDINGS

Over the years, it has become trite in our law that the issue of abuse of Court process is a jurisdictional issue, and being a jurisdictional issue, it can be raised at any time or stage in the proceeding before the Court and notwithstanding the nature of the proceedings and because of fthe importance of jurisdiction, it can be raised by either of the parties or even suo motu by the Court and can even be raised for the very first time before this Court or even at the apex Court. This is because, competence is the soul and/or epicentre of adjudication and without it, there cannot be any valid adjudication and any resultant valid outcome in the Courts. See Usman V. Baba (2004) 48 WRN 47; A.G. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 511 @ p. 566; Utih V. Onoyivwe (1991) 1 NWLR (Pt.166) 166; A.G. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 511 @ p. 566; Utih V. Onoyivwe (1991)1NWLR (Pt.166) 166.
In A.G. Lagos State V A.G. Federation and 35 Ors [2014] 9 NWLR (Pt. 1412) 217 @ p. 249; the Supreme Court per Muhammad, JSC had poignantly restated the position of the law on ause of Court process inter alia thus:
“Courts including the apex Court, lack the jurisdiction of entertaining incompetent claims and/or those that constitute abuse of their processes. They proceed in vain if they do. Being bereft of the necessary vires or with their processes having been abused, the decisions which eventually arise, lack the authority and so remain unenforceable no matter how well conducted the proceedings that brought them about were. A judgment given without jurisdiction creates no legal obligation and does not confer any rights to any of the parties.PER GEORGEWILL, J.C.A

THE FUNDAMENTAL PRINCIPLE OF JURSIDICTION

The question of competence is a threshold issue of jurisdiction and is a fundamental one. Thus, jurisdiction is the life blood or epicenter of every cause or action or matter in our Courts, and therefore, where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter and so, it is it with this Cross-Appeal! See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also P. E. Ltd. v. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 693; A.G. Lagos State V. Dosunmu(1989) 3 NWLR (Pt. 111) 552. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court, Lagos Judicial Division, Coram: Hadiza R. Shagari J. in Suit No. FHC/L/CS/195/2016: The Vessel MT. Sylla & Another V. Ghana Commercial Bank Ltd & Others delivered on 4/7/2016, in which the Appellants’ Suit against the Respondents was dismissed for being an abuse of Court’s process.

The Appellants were dissatisfied with the said ruling and had promptly appealed against it vide their Notice of Appeal filed on 18/7/2016 on four Grounds of Appeal at pages 322-329 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 25/7/2016. Subsequently, and with the leave of this Court made on 11/4/2019, an Amended Notice of Appeal was filed on 3/5/2019. The Appellants’ Amended brief was filed on 12/4/2019 but deemed as properly filed on 25/1/2021. The 1st Respondent’s brief was filed on 6/7/2020 but was deemed as properly filed on 25/1/2021. The 3rd Respondent’s Amended brief was filed on 29/10/2019 but was deemed as properly filed on 25/1/2021. The Appellants’ reply brief to the 1st Respondent’s brief was filed on 3/8/2020 but was deemed as properly filed 25/1/2021. The Appellants’ reply brief to the 3rd Respondent’s brief was filed on 22/11/2019 but deemed as properly filed on 25/1/2021. The 2nd Respondent, though duly served with all the processes in this appeal as well as being served with a hearing notice on 21/1/2021 through counsel, neither filed any brief nor participated at the hearing of this appeal.

At the hearing of this appeal on 25/1/2021, P. Amaran Esq., learned counsel for the Appellants adopted the Appellants’ brief and the reply brief as his arguments and urged the Court to allow the appeal and set aside the ruling of the Court below. On his part, O.B. Oregbemhe Esq., learned counsel for the 1st Respondent adopted the 1st Respondent’s brief as his arguments and urged the Court to dismiss the appeal and affirm the ruling of the Court below. On their part, L. C. Okoli SAN, learned Senior Advocate for the 3rd Respondent, appearing with S. C. Ndudim Esq., adopted the 3rd Respondent’s brief as their arguments and urged the Court to dismiss the appeal and affirm the Ruling of the Court below.

By a Writ of Summons and an accompanying Affidavit in Support filed on 11/2/2016, the Appellants as Claimants claimed against the Respondents as Defendants and placed under the Undefended Cause List of the Court below against the 1st Respondent and some other parties as Defendants, the following reliefs jointly and severally, namely:
1. An Order for the payment of the sum of US$1,888,881.15 as damages due to the wrongful arrest of their vessel MT. Sylla by the Defendants as held in the judgment dated 13/2/2011 in Suit No. FHC/L/CS/1371/2010 and by virtue of the letter of indemnity and undertaking as to damages dated 9/11/2010 given by the 1st Defendant in Suit no. FHC/L/CS/1371/2010 against the wrongful arrest of the Plaintiffs’ vessel, MT. Sylla
2. An Order for the payment of 21% interest on the judgment sum by the Defendants to the Plaintiffs from 13/2/2016, till the debt is liquidated. See pages 1-12 of the Record of Appeal

BRIEF STATEMENT OF FACTS
The Appellants were the Claimants before the Court below and had instituted an action against the Respondents as Defendants claiming damages for wrongful arrest of the Appellants’ vessel in Accra and Lagos and alleged that the Respondents were not privy to the Charter Party agreement between the 2nd Appellant, Global Energy SA., and one Morgan Energy Limited dated 17/5/2010. The Appellants also alleged that the Respondents provided an indemnity and letter of undertaking dated 9/11/2010 for the said arrest of the Appellants’ said Vessel. Subsequently, the Court below found that the Order of arrest of the Appellants’ Vessel. MT. Sylla, made in favor of the Respondents in Suit no. FHC/L/CS/1371/2011 was granted on misrepresentation by the Respondents and the Order of arrest was accordingly discharged. On the strength of this finding by the Court below, the Appellants instituted an action claiming damages against the Respondents for the wrongful arrest of the Appellants’ Vessel, MT. Sylla. See pages 1 – 12 of the Record of Appeal.

​However, to the 1st Respondents, as 1st Defendant before the Court below, the Appellant’s action was initially against three other Defendants and the 1st Respondent was only joined as party before this Court as a substitute for the previous 1st Respondent, UT Bank Ghana Limited in Suit No: FHC/L/CS/488/11: The Vessel MT. Sylla V. Morgan Energy Limited, UT Bank Ghana Limited and UT Financial Services Nigeria Limited, which matter was before C. J. Aneke J of the Court below. In that earlier Suit, the Appellants claimed against the Respondents jointly and severally the sum of $793,000.00 or its Naira equivalent, as per the Charter Agreement dated 17/3/2010, being the damages and loss incurred by the Appellants for the wrongful arrest of the 1st Appellant by the Respondents from 14/11/2010-13/1/2011 by a warrant of arrest obtained by the Respondents on 11/11/2011 and interest at the rate of 21% per annum on the said sum until the final payment. See page 296 of the Record of Appeal

​Upon service of the originating process on all the parties, the 3rd Respondent as the 1st Defendant therein, filed a Notice of Preliminary Objection challenging the jurisdiction of the Court below on the ground of an Arbitration Clause in the Charter Party Agreement and praying the Court below to order a stay of its proceedings pending arbitration but the application was refused. The 1st Defendant then appealed against the refusal to this Court of Appeal, which in its judgment, allowed the appeal and ordered a stay of the proceedings in the said Suit pending arbitration. The Appellant herein appealed against the said judgment of this Court to the Supreme Court, which appeal is still pending.

It is also the case of the 1st Respondent that, whilst the appeal by the Appellants herein was still pending before the Supreme Court and their earlier Suit No. FHC/L/CS/488/11- The Vessel MT Sylla and The Owners and All Persons Interested in the Vessel MT Sylla V Morgan Energy Limited, UT Bank (Ghana) Limited and UT Financial Services was still pending before the Court below, the Appellants proceeded to file the present Suit No. FHC/L/CS/195/2016: The Vessel MT. Sylla and Global Energy SA. V. UT Bank (Ghana) Limited and UT Financial Services Nigeria Limited under the Undefended Cause List of the Court below claiming for the payment of the sum of US$1,888,881.15 as damages due to the wrongful arrest of the Appellants’ Vessel MT. Sylla by the Respondents as held in the judgment dated 13/11/2011 in Suit No. FHC/L/CS/1371/2010 and by virtue of the letter of indemnity and undertaking as to damages dated 9/11/2010 given by 1st Defendant in Suit No. FHC/L/CS/1371/2010 and for the payment of 21% interest on the judgment sum from 13/2/2016 till the debt is liquidated. See pages 1-4 and 296 of the Record of Appeal

On the part of the 3rd Respondent in this appeal, the present Suit filed by the Appellants seeking the same relief sought in their earlier Suit before the Court below constituted an abuse of Court process and was rightly dismissed by the Court below on 4/7/2016. The 3rd Respondent also alleged the same set of facts and circumstances as alleged by the 1st Respondent as the basis for its contention before the Court below that the Appellants’ present Suit No.FHC/L/CS/195/2016: The Vessel MT. Sylla and Global Energy SA. V. UT Bank (Ghana) Limited and UT Financial Services Nigeria Limited, on the face of the pendency of the both the Appellants’ earlier Suit No. FHC/L/CS/488/11: The Vessel MT. Sylla and The owners and All Persons Interested in the Vessel MT. Sylla V. Morgan Energy Limited, UT Bank (Ghana) Limited and UT Financial Services Nigeria Limited before the Court below and the Appellants’ appeal against the judgment of this Court in the said case to the Supreme Court, clearly constituted an abuse of Court process and was rightly dismissed by the Court below on 4/7/2016. See pages 1-4 and 296 of the Record of Appeal.

Before the Court below, the Parties joined issues on the Preliminary Objection of the 3rd Respondent challenging the competence of the Appellants’ present Suit No. FHC/L/CS/195/2016: The Vessel MT. Sylla and Global Energy SA. V. UT Bank (Ghana) Limited and UT Financial Services Nigeria Limited on the ground that it constituted an abuse of Court process. The Court below heard the parties and on 4/7/2016 it delivered its ruling upholding the Preliminary Objection of the 3rd Respondent as 1st Defendant and thereby, dismissed the Appellants’ Suit for being an abuse of Court process, hence this appeal. See pages 313 – 321, 322 – 329 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the Grounds of Appeal, namely:
1. Whether the Respondents, having failed to comply with the provisions of the undefended list procedure, in Order 12(4), of the Federal High Court (Civil Procedure) Rules, 2009, the Court below was not bound to deliver judgment on the date fixed for judgment on 16/6/2016?
2. Whether the Appellants’ action in Suit No. FHC/L/CS/195/2016 was an abuse of Court process due to the Appellants’ Appeal in Suit No. SC/116/2015 in the Supreme Court?
3. Whether the Appellants are not entitled to institute a case for damages for wrongful arrest of their Vessel MT. Sylla, against the Respondents, having not being compensated for damages for the wrongful arrest of their vessel MT. Sylla, the Respondents who were not parties to the charter party agreement dated 17/5/2010, between the 2nd Appellant (Global Energy S. A.) and Morgan Energy Limited, but obtained warrants of arrest against the Vessel MT. Sylla in Accra and Lagos and also gave an indemnity and letter of undertaking dated the 9/11/2010, for the wrongful arrest of the Appellants’ vessel MT. Sylla, as held in Suit No. FHC/L/CS/1371/2010?

​In the 1st Respondent’s brief, two issues were also distilled as arising for determination in this appeal, namely:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

1. Whether the Court below was right when it held that the Appellants’ suit as constituted before it was an abuse of Court process?

2. Whether an abuse of Court process is an issue of jurisdiction which can be raised at any time irrespective of the undefended List procedure of the Federal High Court Rules?

In the 3rd Respondent’s brief, two issues were also distilled as arising for determination in this appeal, namely:
1. Whether an abuse of Court process is a jurisdictional issue which can be raised at any time notwithstanding the undefended list procedure and arising from that, whether the Appellants’ suit before the Federal High Court was not an abuse of Court process? (Distilled from Ground 1, 2, 3 and 4)
2. Assuming but not conceding that the suit was not an abuse of Court process, whether the Court below could have shut its eyes to the Defendants’ affidavit disclosing a defence? (Distilled from Ground 2)

​I have given due considerations to the facts and circumstances of this appeal, the ruling of the Court below dismissing the Appellants’ Suit for being an abuse of Court’s process and the submissions of counsel in their respective briefs and I am of the view that the two issues for determination as distilled in the 1st Respondent’s brief best represent the real issues for determination in this appeal. In my view, a consideration of these two issues would invariably involve a consideration of the three issues as distilled in the Appellants’ brief as well as the two issues as distilled in the 3rd Respondent’s brief. I hereby set down the 1st Respondent’s two issues as the issues for determination in this appeal. Now, whilst a consideration of 1st Respondent’s issue one would cover Appellants’ issues two and three and 3rd Respondent’s issue one, a consideration of 1st Respondent’s issue two would cover Appellants’ issue one and 3rd Respondent’s issue two.

ISSUE ONE
Whether the Court below was right when it held that the Appellants’ suit as constituted before it was an abuse of Court process?

​APPELLANTS’ COUNSEL SUBMISSIONS
On his issue two, whether the Appellants’ action in suit No. FHC/L/CS/195/2016 was an abuse of Court process due to the Appellants’ Appeal in Suit No. SC/116/2015 to the Supreme Court, learned counsel for the Appellants had submitted that the Respondents did not appeal the ruling of the Federal High Court in Suit No. FHC/488/2011 to this Court or the Supreme Court and are therefore, not bound by that decision or effected in anyway by the outcome of the decision because, they were not privy to the contract between Global Energy S. A. and Morgan Energy Limited and contended that, it was Morgan Energy Limited that appealed the said ruling to this Court and urged the Court to hold that, in the absence of any privity of contract between the Appellants and the Respondents, there is no relationship between the issues in the earlier Suit now pending on appeal to the Supreme Court and the present Suit and therefore, does not in any way constitute an abuse of Court process as was erroneously held by the Court below and to allow the appeal and set aside the ruling of the Court blow. Counsel relied on Kubor V. Dickson (2013) 4 NWLR (Pt. 1345) 552; Dapianlong V. Dariye (2007) 8 NWLR (Pt. 1036) 262; A.G. Anambra State V. Okeke (2002) 12 NWLR (Pt. 782)593; Zakhem Const. (Nig.) Ltd V. Nneji (2002) 5 NWLR (Pt. 759) 60; Nwaigwe V. F.R.N. (2009) 16 NWLR Pt. 1166; C.O.M. Inc. V. Cobham (2006) 15 NWLR (Pt.1002)1.

It was also submitted that, where there is a right to bring an action, the state of mind of the person exercising the right cannot affect the validity or propriety of its exercise and contended that in law, accessibility to a Court of law to vent a real or imagined grievance is generally regarded as a hallmark of democracy and that it is not the law that, once a party files another Suit before another Court on the same subject matter, there is an abuse of Court process since an act can give rise to different Suits and a subject matter may very well give rise to different rights and urged the Court to hold that the issues and parties in the present case and the earlier Suit filed by the Appellants are not the same and therefore, the present Suit does not constitute an abuse of Court process as was perversely held by the Court below and to allow the appeal and set aside the perverse ruling of the Court below. Counsel relied on Kubor V. Dickson (2013) 4 NWLR (Pt. 1345) 552; Dapianlong V. Dariye (2007) 8 NWLR (Pt. 1036) 262; A.G. Anambra State V. Okeke (2002) 12 NWLR (Pt. 782) 593.
​On his issue three, whether the Appellants are not entitled to institute a case for damages for wrongful arrest of the vessel MT. Sylla, against the Respondents, having not being compensated for damages for wrongful arrest of their vessel MT. Sylla, who were not parties to the charter party agreement dated 17/5/2010, between the 2nd Appellant and Morgan Energy Limited but obtained warrants of arrest against the vessel MT. Sylla in Accra and Lagos and also gave an indemnity and letter of undertaking for the wrongful arrest of the Appellants vessel MT. Sylla as held in Suit No. FHC/L/CS/1371/2010, learned counsel for the Appellants had submitted that the 2nd Appellant, Global Energy SA is entitled to bring this action against the Respondents only for the indemnity and letter of undertaking given for the arrest of their vessel MT. Sylla, and contended that, since Morgan Energy Limited did not give any indemnity and undertaking for the arrest of the vessel MT. Sylla an order for wrongful arrest will be unenforceable against them and urged the Court to hold that, the Respondents, having provided the indemnity and undertaking for the arrest of the Appellants’ vessel, the Appellants have the valid legal right and bona fide to institute an action against the Respondents for compensation from the indemnity and undertaking by the Respondents for the wrongful arrest of the Appellants’ Vessel, MT. Sylla since in law, it is the right of a Claimant to choose person or persons to proceed against and to allow the appeal and set aside the perverse ruling of the Court below. Counsel referred to Order II (3)(1) of the Admiralty Jurisdiction Procedure Rules, 2011, and relied on Olawoye V. Jimoh (2013) 13 NWLR (Part 1371) 367; Balonwu V. Ikpeazu (2005) 13 NWLR (Pt. 942); Iyimoga V. Gov, Plateau State (1994) 8 NWLR (Pt. 360) 73; B.O.N. Ltd V. Saleh (1999) 9 NWLR (Pt. 618) 331.

1ST RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the 1st Respondent had submitted that, the Court below was right when it held that the Appellants’ case was an abuse of Court process and contended that the present Appellants’ Suit filed during the pendency of both its earlier Suit and appeal to the Supreme Court over the same subject matter, issues and parties and their privies clearly constituted an abuse of Court process and urged the Court to hold that in law, the act of the Appellants fits perfectly the concept of abuse of Court process which is not limited to a situation where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice but also, where two or more similar processes are issued by a party against the same party or parties and their privies in respect of the exercises of the same right and same subject-matter and to dismiss the appeal and affirm the correct ruling of the Court below. Counsel relied on African Continental Bank Plc V. Damian Ikechukwu Nwaigwe & 2 Ors (2011) 7 NWLR (Pt. 1246) 390 @ pg. 392 – 393; Dingyadi V. INEC (No. 1) (2011) 18 NWLR (Pt. 1224) 75.

​It was also submitted that the Appellants who were the 1st and 2nd Respondents in the Appeal No. CA/L/382/2014 before this Court and who had appealed against the judgment of this Court to the Supreme Court in Appeal No. SC/116/2015 must in law, await the decision of the Supreme Court on the same subject matter, issues and same parties and their privies in that the sole purpose of the appeal to the Supreme Court is to re-open Suit No. FHC/L/CS/488/2011 and which proceedings were stayed by the judgment of this Court and contended that the Appellants, being under a duty to await the outcome of their appeal to the Supreme Court were in abuse of Court process when they proceeded to file a new Suit No. FHC/L/CS/195/2016, claiming the same reliefs which they seek in Suit No. FHC/L/CS/488/2011 and urged the Court to hold that the purpose of the Appellants’ new Suit was merely to circumvent the decision of this Court staying the proceedings in Suit No. FHC/L/CS/488/2011 and to dismiss the appeal and affirm the ruling of the Court below. Counsel relied on Adesokan V. Adegorolu (1991) 3 NWLR (Pt. 179) 293.

It was further submitted that in law, where an Appellant maintains an action between same parties and on same subject matter in the same Court or even in different Courts; it is the Suit that is latter later in time that is vacated and contended that Court below was right to have vacated the Appellants’ latter action, the subject matter of this appeal and urged the Court to so hold and to dismiss the appeal for being frivolous and affirm the ruling of the Court below. Counsel relied on Abu V. Odugbo (2001) 14 NWLR (Pt. 732) 45; Dingyadi V. INEC (No. 1) (2011) 18 NWLR (Pt. 1224) 75; See also Dingyadi V. INEC (2011) 10 NWLR (Pt. 1255) 347 @ pp. 412- 413; Agwasim V. Ojichie (2004) 10 NWLR (Pt. 882) 613.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, whether an abuse of Court process is a jurisdictional issue which can be raised at any time notwithstanding the undefended list procedure and arising from that, whether the Appellants’ Suit before the Federal High Court was not an abuse of Court process, learned Senior Advocate for the 3rd Respondent had submitted that the issue of jurisdiction can be raised even under the Undefended List procedure and contended that in law, the issue of abuse of Court process, being a jurisdictional issue, is a complete defence that can be raised by a Defendant to challenge the competence of such action or the jurisdiction of the Court to entertain even matter placed under the Undefended List and urged the Court to hold that the Court below was right to have considered and resolved the issue of competence of the Appellants’ Suit and consequently dismissing it, having found it to be an abuse of Court process and to dismiss the appeal for lacking in merit. Learned SAN relied on Usman V. Baba (2004) 48 WRN 47; AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 511 @ p. 566; Utih V. Onoyivwe (1991) 1 NWLR (Pt.166) 166; AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 511 @ p. 566; Utih V. Onoyivwe (1991) 1 NWLR (Pt.166) 166; AG. Lagos State V AG. Federation and 35 Ors [2014] 9 NWLR (Pt. 1412) 217 @ p. 249.

It was also submitted that the challenge to the competence of the Appellants’ Suit being one founded on jurisdictional incompetence of the Court below to entertain a Suit founded on abuse of Court process, there was no duty on the Court below not to hear the challenge to its jurisdiction even if it was filed after 21 days of service of the Originating process on the Respondents as Defendants and contended that, by Rule 5 of Order 29 of the Rules of the Court below, an application raising the issue of competence filed after the 21 days period, can be taken at the conclusion of trial and urged the Court that the Court below acted in line with this Rule when it took the 3rd Respondent’s preliminary objection at the conclusion of the trial, though, even non-compliance with this Rule would not have vitiated the hearing of a preliminary objection founded on lack of jurisdiction, and finding it meritorious, granted it and dismissed the Appellants’ Suit for being an abuse of Court process and to dismiss the appeal. Learned SAN relied on Olusegun Egunjobi V. FRN (2012) LPELR – 15537 (SC); U.T.C. (Nig.) Ltd V. Pamotei (1989) 2 NWLR (Pt. 103) 244 @ p. 296.

It was further submitted that the Appellant’s Suit which sought to re-litigate an issue between the same parties and their privies already pending before the Supreme Court, clearly amounted to an abuse of Court process as was rightly found by the Court below and contended that in law, abuse of judicial process is the improper use of the judicial process by a party in litigation and 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 or instituting different actions between the same parties simultaneously in different Courts, even though on different grounds, and urged the Court to hold that the Appellants’ fresh Suit constituted an abuse of Court process and was thus rightly dismissed by the Court below and to dismiss the appeal for lacking in merit. Learned SAN relied on Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156; Agwasim V. Ojichie (2004) All FWLR (Pt. 212) 1600; Ukachukwu V. PDP (2014) All FWLR (Pt.728) 887 @ pp. 903 – 904.

It was also further submitted that, on the face of the pendency of the Appellants’ appeal before the Supreme Court touching on the same subject matter, same issues and same parties and their privies and since in law, parties are bound by the decision of the Court until set aside, the Appellants’ fresh Suit over the same subject matter, issues and parties and their privies was one lacking in bona fide and therefore, constituted an abuse of Court process and was thus, liable to be dismissed as was rightly done by the Court below and urged the Court to so hold and dismiss the appeal and affirm the correct ruling of the Court below. Learned SAN relied on Uyaemenam Nwora and 7 Ors V. Nweke Nwabueze & Ors (2011) LPELR – 23008 (SC).

APPELLANTS’ COUNSEL REPLY SUBMISSIONS TO 1ST RESPONDENT
In his reply to the 1st Respondent, learned counsel to the Appellants virtually rehashed and reiterated his earlier submissions and basically re-argued his appeal under the guise of a reply brief. The reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry. The Reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course, even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. This is clearly the intendment of Order 19 Rules 5 (1) of the Court of Appeal Rules, 2016, which provides thus:
“The Appellant may also, if necessary, within fourteen days of 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”

See Olafisoye V. FRN (2004) 1 SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2-3 SC 61; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).

​However, having stated as above, let me for the purpose of completeness in this judgment proceed to review the submissions of the Appellants’ reply brief to the 1st Respondent, albeit briefly. It was submitted that on the face of the valid and subsisting judgment of the Court below in Suit No. FHC/L/CS/1371/2010 the Appellants had the legal right to enforce the said judgment against the Respondents and contended that the Court below erred in law when having entered judgment in favor of the Appellants under the Undefended list procedure on 20/4/2016 it still went ahead thereafter to hold that the Appellants’ Suit was an abuse of Court process and urged the Court to hold that the Court below had become functus officio having already entered judgment for the Appellants and to allow the appeal and set aside the perverse ruling of the Court below. Counsel relied on Ngere V. Okuruket “XIV” (2014) 11 NWLR (Pt. 1417) 154; Aso Motel Kaduna Limited Vs. Deyemo (2006) 7 NWLR (Pt. 978) 96; Ngere V. Okuruket (2017) 5 NWLR (Pt. 1559) 448; Stirling Civil Eng (Nig) Ltd V. Yahaya (2005) 11 NWLR (Pt. 935) 188; Dingyadi V. INEC (No.2) (2010) 18 NWLR (Pt. 1224) 171.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS TO 3RD RESPONDENT
The Appellants’ reply to the 3rd Respondent under issue one was also affected by the virus of repetition and re-arguing the appeal contrary to the purpose of a reply brief under Order 19 Rules 5 (1) of the Court of Appeal Rules 2016. However, I shall merely for the purpose of completeness in this judgment proceed to review the submissions of the Appellants’ reply brief to the 1st Respondent, albeit briefly.

​It was submitted that the Respondents had ample opportunity to raise the issue of the action being an abuse of the Court process when the Respondents filed a conditional appearance on 29/3/2016, in the matter being aware that the return date for the hearing of the action was 20/4/2016 and contended that the 1st and 2nd Respondents only filed an affidavit disclosing a defence out of the 5 days allowed by the Rules and without the leave of the Court below, as required by Order 27(4) of the Federal High Court (Civil Procedure) Rules, 2009, on 15/6/2016, and urged the Court to hold that in the circumstances, the Court below fell into error when it failed to deliver its judgment that it had already entered on 20/4/2016 under the undefended list procedure in favor of the Appellants when the case came up for judgment on 16/6/2016, and to allow the appeal and set aside the ruling of the Court below and enter judgment for the Appellants against the Respondents as per their claims before the Court below. Counsel relied on G.M.O.N. & S. Co. Ltd V. Akpata (2010) 9 NWLR (Pt. 1200) 453; M. C. Investment Limited V. C.I. & C. M. Ltd (2012) 12 NWLR (Pt. 1313) 1; Ben Thomas Hotel Ltd V. Sebi Furniture Ltd (1989) 5 NWLR (Pt. 123) 523; UTC (Nig.) Ltd V. Pamotei (1989) 2 NWLR (Pt.103) 244; UAC (Tech) Ltd V. Anglo Canadian Cement Ltd (1966) NMLR 349.

RESOLUTION OF ISSUE ONE
My lords, issue one simply deals with, when in law would an action or matter be said to amount to an abuse of Court process and thus liable to be dismissed in limine? In Suit No. FHC/L/CS/1371/2010, the Respondents, including their privies had sought and obtained a warrant for the arrest of the Appellants’ Vessel, MT. Sylla. However, the said Order of arrest was subsequently discharged on the ground that the Court below was misled by the Respondents in obtaining the said Order of arrest of the 1st Appellant herein. As required under the Admiralty Jurisdiction of the Court below, the Respondent had undertaken and given indemnity in favor of the Appellants should it turned out that the Order of arrest of the 1st Appellant sought and obtained by them was unreasonable and/or unwarranted and ought not to have been granted by the Court below.

The Appellants buoyed up by that favorable decision of the Court below and embolden by the Admiralty Jurisdiction Rules on recovery of damages for wrongful arrest had approached the Court below in Suit No. FHC/L/CS/488/2011, Between: The Vessel MT Sylla, The Owners And All Person Interested in The Vessel MT Sylla V. Morgan Energy Limited, UT Bank (Ghana) Limited and UT Financial Services Limited, claiming the sum of $793,000.00 as damages and losses incurred by the Appellants for the wrongful arrest of the 1st Appellant by the Respondents and their privies.

Upon service of the Originating processes, the Defendants took objection to its competence in the light of an arbitration clause in the Charter Party which requires the parties to submit any dispute to arbitration. The Court below per Aneke J. heard and dismissed the preliminary objection. The Defendants in that Suit were peeved with the ruling of the Court below and had appealed to this Court in Appeal No. CA/L/382/2014, Between: Morgan Energy Limited, UT. Bank (Ghana) Limited and UT Financial Services Limited V. The Vessel MT. Sylla and The Owners and all persons interested in the vessel MT. Sylla. The appeal was duly heard and in its judgment per Joseph Shagboar-Ikyegh, JCA, it was allowed in part and a stay of proceedings in the said Suit pending arbitration was made by this Court, holding inter alia thus:
“There is therefore merit in the appeal on the leg of the refusal of the Court below to grant a stay of proceedings in the substantive suit pending arbitration. The appeal is allowed in part on this ground only. The decision of the Court below refusing to order a stay of proceedings in the substantive suit pending arbitration is hereby set aside. The appellant is granted a stay of proceeding in the substantive Suit No. FHC/L/CS/488/11 pending arbitration.” See page 214 of the Record of Appeal.

It was then the turn for Appellants, who were the 1st and 2nd Respondents in the appeal before this Court to be become peeved by the judgment of this Court and they promptly appealed to the Supreme Court in Appeal No. SC/116/2015, Between: The Vessel Mt. Sylla, The Owners And All Person Interested in The Vessel Mt. Sylla V. Morgan Energy Limited, UT Bank (Ghana) Limited and UT Financial Services Limited, which appeal both parties are ad idem is still pending before the Supreme Court. In a twist, which has become the subject of this appeal, the Appellants returned to the Court below before Hadiza R. Shagari J, and commenced a Suit under the undefended list in Suit No. FHC/L/CS/195/2016, Between: The Vessel MT. Sylla, Global Energy SA. V. UT. Bank (Ghana) Limited and UT. Financial Services Limited, claiming the sum of US$1,888,881.15 as damages for the wrongful arrest of the Appellants’ Vessel MT Sylla by the Respondents.

Upon service, the Respondents did not file their Notice of Intention to defend within the time of 5 days as allowed by the Rules of the Court below and the matter proceeded to hearing under the Undefended Cause List of the Court below on 20/4/2016 and was adjourned to 20/6/2016 for judgment. However, on 17/5/2016, the 3rd Respondent filed along with its affidavit of its intention to defend the claims of the Appellants a Notice of Preliminary Objection challenging the competence of the Appellants’ Suit on the ground that it constitutes an abuse of Court process. On 20/6/2016, the original date set for the delivery of judgment in the Appellants’ Suit, the Court below, its attention having been drawn to the pending Notice of Preliminary Objection, proceeded to hear the parties on the 3rd Respondent’s Notice of Preliminary Objection and the matter was then further adjourned to 1/7/2016 for ruling/judgment by the Court below, which ruling was eventually delivered on 4/7/2016 upholding the 3rd Respondent’s preliminary objection and thereby dismissing the Appellants’ Suit for being an abuse of Court process.

By a Notice of Preliminary Objection filed on 17/5/2016 and brought pursuant to Order 26 Rule 2 of the Federal High Court Civil Procedure Rules, 2009, the 3rd Respondent sought the following reliefs:
1. An Order of the Court setting aside all proceedings conducted in the matter for lack of jurisdiction.
2. An Order dismissing this suit for lack of jurisdiction, being an abuse of judicial process.
3. And for such further order or other orders as the Court may deem fit to make in the circumstances.

​The grounds of the Preliminary Objection application were that:
1. That the Plaintiffs/Respondents have pending case before this Court in Suit FHC/L/CS/488/2011 The Vessel MT Sylla and another V. Morgan Energy Limited, UT Bank (Ghana) Limited claims for damages against the 1st and 2nd Defendant/Applicants for unlawful arrest of the 1st Plaintiff/Respondent
2. That the Claim for unlawful arrest in Suit No. FHC/L/CS/488/2011 arose from the order of arrest by this Court in Suit No. FHC/L/CS/1371/2010.
3. That further proceedings in suit No. FHC/L/CS/488/2011 was stayed by the Court of Appeal and parties ordered to proceed to Arbitration. The Plaintiffs herein appealed to the Supreme Court the appeal is still pending.
4. That the Plaintiffs have filed this suit in respect of the arrest of 1st Plaintiff while the appeal is still pending at the Supreme Court.
5. That this suit is premised on the arrest of the 1st Plaintiff pursuant to the order of arrest issued in suit No. FHC/L/1371/2010.

The Preliminary Objection was supported by an 11 paragraph affidavit deposed to by one Felix Osadiaye, annexed to which were 4 Exhibits. In the main, the facts deposed to in the affidavit were inter alia that: the Plaintiffs/Respondents had sued the 1st and 2nd Defendant/Applicant in Suit NO. FHC/L/CS/488/2011: The Vessel MT Sylla and Anor v Morgan Energy Limited, UT Bank (Ghana) Limited and UT Financial Services Limited. Annexed to this affidavit and marked Exhibit UT; that in Suit No. FHC/L/CS488/2011 the Plaintiffs’/Respondents’ claim is against both Applicants and one Morgan Energy in damages for wrongful arrest of the 1st Plaintiff/Respondent pursuant to an order of arrest issued by the Court below in Suit No. FHC/L/1371/2010; that the said Morgan Energy filed a Notice of Preliminary Objection to the Suit on the ground that it is an abuse of Court process or in the alternative, that the Court should stay proceedings and Order the parties to Arbitration; that the Court presided over by Hon. Justice Aneke refused the application and the said Morgan Energy appealed to the Court of Appeal; that the Court of Appeal Lagos Division in Appeal No. CA/L/382/2014 delivered its judgment on 2/12/2014 and upheld the appeal, ordered a stay of proceedings in Suit No. FHC/L/CS/488/2011 and further ordered the parties to proceed to arbitration; that the Plaintiffs/Respondents herein, being dissatisfied with the said judgment of the Court of Appeal filed a Notice of appeal to the Supreme Court; that, while the Appeal is still pending before the Supreme Court and Suit No. FHC/L/CS/488/2011 is still before the Federal High Court, the Plaintiffs/Respondents have filed this action to claim damages in respect of the alleged wrongful arrest of 1st Plaintiff pursuant to the order of arrest issued in Suit No. FHC/L/1371/2010; that the Plaintiffs/Respondents’ intention is to use the Court process to harass and annoy the Defendant/Applicants. See pages 181-182 of the Record of Appeal.

It was on the strength of the above facts and circumstances surrounding the fresh Suit No. FHC/L/CS/195/2016 filed by the Appellants that the Court below had, in its ruling and/or judgment delivered on 4/7/2016, whilst dismissing the Appellants’ Suit No. FHC/L/CS/195/2016 for being an abuse of Court process, held inter alia thus:
“…It is in my view to state that, this suit before this Court brought under the undefended procedure is an abuse of Court process same having been on Appeal before the appellate Court who delivered judgment and directed parties to refer to Arbitration, and Respondent still being dissatisfied with the appellate Court’s decision proceeded to the Supreme Court on Appeal and the Appeal still pending with that action of the Respondent/Applicant in this suit there is clear abuse of judicial proces… Furthermore, filing of an application in an appellate Court when the same is pending before Court below constitute an abuse of Court process as in the instance case, with the pending appeal at the Supreme Court, the Respondent/Applicant erred in law by filling this suit without pursuing the appeal at the Supreme Court. This is an act of abuse of judicial process… I therefore hold the view that, from the foregoing, the application before this Court, for judgment to be entered in favor of the Defendant/Applicant under the undefended list procedure is not granted, as same is being an abuse of Court process. The Suit/Application is hereby dismissed.” See pages 313-321 of the Record of Appeal.

My lords, the term ‘abuse of Court process’ is often seen to be synonymous with multiplicity of Suits or of Court processes, but though, that in a way is a correct proposition of the law yet, abuse of Court process is much more than mere multiplicity of suits. In other words, multiplicity of Suits or processes is not the only way by which abuse of Court process could be constituted. Simply put, and for lack of a precise or concise definition of the term ‘abuse of Court process’ denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus, it can safely pass as a doctrine of law without any precise or concise definition.
The above position of the law is rightly and arguably so because, what would constitute or amount to abuse of Court process is very diverse, imprecise and thus, subject to infinite or indefinite considerations. In considering whether or not an action or process constitutes an abuse of Court process, the Court is to critically consider the peculiar facts and circumstances of each case in which the issue of abuse of Court process is raised to determine whether in the peculiar circumstances of the affected case, the act of the party complained of constitutes an abuse of Court process. Happily, over the years, authorities have become legion as are replete in the law reports providing some form of guide in carrying out the consideration of whether or not an abuse of Court process has been occasioned by the process of a party. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156. See also Daniel V. FRN (2014) 8 NWLR (Pt. 1410) 570; Harriman V. Harriman (1989) 5 NWLR (Pt. 1199) 6; Ukachukwu V. PDP (2014) 4 NWLR (Pt. 1396) 65; CPC V. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (Pt. 1066) 319; Adesokan V. Adegorolu (1991) 3 NWLR (Pt. 179) 293; Umeh V.Iwu (2008) 8 NWLR (Pt. 1089) 225; Dana Airlines Ltd V. Amiaka & Ors (2017) LPELR – 43050 (CA).
The corollary to the above fluid state of uncertainty and imprecise definition of the term ‘abuse of Court process’ is ironically, the settled certainty that the factual situations or categories of facts or circumstances that may constitute or amount or give rise to abuse of Court process are never closed and therefore, has no exhaustive list thereof and thus, would largely depend on the peculiar facts and circumstances of each case. See Ette V. Edoho (2009) 3 NWLR (Pt. 1144) 601 @ p. 609. See also PDP V. Obi (2009) 3 NWLR (Pt. 1128) 327 @ pp. 339-340; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225; Benkay Nig. Ltd. V. Cadbury Nig Plc. (2006) 6 NWLR (Pt. 976) 338.

​I have also averted my mind sufficiently to the essential elements that would constitute abuse of Court process, namely: a. There must be, at least, two matters filed in two different Courts; b. The different Suits are instituted with the goal of pursuing the same rights (even though on different grounds); c. The subject matter and/or the questions for determination in the two Suits must be substantially the same and d. Frivolous and scandalous use of a lawful Court process to the irritation and embarrassment of another party. See Ogoejeofo V. Ogoejeofo (2006) 3NWLR (PT 966)205 SC

In law it is also true, as aptly and unassailably submitted by learned counsel for the Appellants that where there is a legal right to bring an action, the state of mind of the person exercising the right cannot affect the validity or propriety of its exercise since accessibility to a Court of law to vent one’s real grievance is generally regarded as a hallmark of democracy.

It is also true that, it is not the law that, once a party files another Suit before another Court on the same subject matter, there is an abuse of Court process since an act can give rise to different issues and a subject matter may very well also give rise to different rights capable of being enforced in a Court of law. In all of these circumstances, such multiple Suits would not constitute an abuse of Court process. See Kubor V. Dickson (2013) 4 NWLR (Pt. 1345) 552; Dapianlong V. Dariye (2007) 8 NWLR (Pt. 1036) 262; A.G. Anambra State V. Okeke (2002) 12 NWLR (Pt. 782)593.

In the earlier Suit No. Suit No. FHC/L/CS/488/2011, Between: The Vessel Mt. Sylla, The Owners And All Person Interested in The Vessel MT Sylla V. Morgan Energy Limited, UT Bank (Ghana) Limited and UT Financial Services Limited, the Appellants as Claimants had claimed against the Respondents and their privies jointly and severally the following reliefs:
1. The sum of $793,000.00 (totalling the agreed sum of $13,000.00 US Dollars per day as per the Charter Agreement dated 17/3/2010) being the damage and loss incurred by the Plaintiffs for the wrongful arrest of the 1st plaintiff by the defendants from the 14/11/2010–13/1/2011 by a warrant of arrest obtained by the Plaintiffs in the Federal High Court, Lagos dated 11/11/2010
2. Interest on the sum of $793,000.00 at the rate of 21% per annum until the final payment on the said sum.

In the latter Suit No. FHC/L/CS/195/2016, Between: The Vessel MT. Sylla, Global Energy SA. V. UT. Bank (Ghana) Limited and UT. Financial Services Limited, the Appellants as Claimants had claimed against the Respondents and their privies jointly and severally the following reliefs:
1. An Order for the payment of the sum of US$1,888,881.15 as damages due to the wrongful arrest of their vessel MT Sylla by the defendants as held in the judgment dated 13/1/2011, in Suit no. and by virtue of the letter of indemnity and undertaking as to damages dated the 9/11/2010 given by 1st Defendant in Suit no. FHC/L/CS/1371/2010, against the wrongful arrest of the Plaintiffs’ vessel, MT Sylla
2. An Order for the payment of 21% interest on the judgment sum by the defendants to the plaintiffs from the 13/2/2016 till the debt is liquidated.

​Now, having calmly considered the peculiar facts and circumstances of this case as in the Record of Appeal, including all the processes filed by the parties as it relates to the parties, issues and subject matters in Suit No. FHC/L/CS/488/2011, Between: The Vessel Mt. Sylla, The Owners And All Person Interested in The Vessel Mt Sylla V. Morgan Energy Limited, UT Bank (Ghana) Limited and UT Financial Services Limited, and Suit No. FHC/L/CS/195/2016, Between: The Vessel MT. Sylla, Global Energy SA. V. UT. Bank (Ghana) Limited and UT. Financial Services Limited, both filed by the Appellants, I find that Suit No. FHC/L/CS/195/2016 was filed during the pendency of Suit No. FHC/L/CS/488/2011, as well as the subsisting judgment of this Court in Appeal No. CA/L/382/2014, Between: Morgan Energy Limited, UT. Bank (Ghana) Limited and UT Financial Services Limited V. The Vessel MT. Sylla and The Owners and all persons interested in the vessel MT. Sylla and during the pendency of Appeal No. SC/116/2015, Between: The Vessel Mt. Sylla, The Owners And All Person Interested in The Vessel Mt. Sylla V. Morgan Energy Limited, UT Bank (Ghana) Limited and UT Financial Services Limited, which appeal both parties are ad idem is still pending before the Supreme Court, I find as fact that, both the parties, issues and subject matter in all these cases are the same as between the parties on record in this appeal and their privies as rightly found by the Court below in its judgment appealed against by the Appellants in this appeal.

​Having found as fact above, it is clear to me, and I so hold that the Appellants Suit No. FHC/L/CS/195/2016, Between: The Vessel MT. Sylla, Global Energy SA. V. UT. Bank (Ghana) Limited and UT. Financial Services Limited, clearly constitutes an abuse of Court process since in law, the acts of the Appellants in filing the present Suit clearly and perfectly fits the concept of abuse of Court process, which is not limited to a situation where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice but also where two or more similar processes are issued by a party against the same party or parties and their privies in respect of the exercises of the same right and same subject matter. See African Continental Bank Plc V. Damian Ikechukwu Nwaigwe & 2 Ors (2011) 7 NWLR (Pt. 1246) 390 @ pg. 392 -393, where the Supreme Court per Onnoghen JSC., (as he then was but later CJN) had reiterated inter alia thus:
“Abuse of Court process has been defined to include a situation where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice; where two or more similar processes are issued by a party against the same party/parties in respect of the exercises of the same right and same subject matter; or where the process of the Court has not been used bona fide and properly.”
See also Dingyadi V. INEC (No. 1) (2011) 18 NWLR (Pt. 1224) 75.

So, are the Appellants’ two pending Suits in Suit No. FHC/L/CS/195/2016, Between: The Vessel MT. Sylla, Global Energy SA. V. UT. Bank (Ghana) Limited and UT. Financial Services Limited and Suit No. FHC/L/CS/488/2011, Between: The Vessel MT. Sylla, Global Energy SA. V. UT. Bank (Ghana) Limited and UT. Financial Services Limited, both filed by the Appellants, as a result of the alleged act of the Respondents in wrongfully causing the arrest of the Appellants’ Vessel MT. Sylla, the undertaking and indemnity as to damages giving rise to different issues and/or the subject matter of the wrongful arrest of the Appellants’ Vessesl MT. Sylla by the Respondents, giving rise to different rights of action in the Appellants to maintain multiple Suits for the legal enforcement of these different issues and/or rights of action? I think not! What the Appellants did here is the institution of different Suits over the same subject matter, same issues and same parties and their privies and it would be completely immaterial, in my view, even if the Appellants were to increase or reduce the number of reliefs claimed in the latter Suit or that they added a new party on the record to the latter Suit, who was already a privy to the parties in the earlier Suit.

I thought I should point it out at once that, in relation to parties to a Suit, the law is that, privies are those who are in privity with the parties on record. It refers to anyone who is a partaker or has any part or interest in any action or matter or thing or one who after the commencement of an action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritance, succession, purchase or assignment. See Black’s Law Dictionary 6th Edition @ p. 1200. See also Daniel V. Kadiri (2010) LPELR – 4017(CA).
In Alhaji Adekunle Agbalajobi & Anor V. Governor of Lagos State (2017) LPELR- 41955(CA), this Court per Georgewill, JCA., had to consider who are parties to a suit and who must be bound by the judgment of the Court and we reiterated inter alia thus:
“A judgment of the Court binds not only the parties but also all those who come within the legal ambit of privies to the parties on the record. In law, privies are of three classes, namely: Privies in blood; Privies in law, and Privies in Estate. See Vol. 15 Halsbury Laws of England, 3rd Edition @ P. 196 Article 372.”
See also, Coker V. Sanyaolu (1976) 10 NSCC 566 @ p. 573; Adone V. Ikebudu (2001) 7 SCNJ 513 @ p. 534; Daniel V. Kadiri & Anor. (2010) LPELR – 4017(CA)”

Thus, it is quite clear to me, and I so hold, that the Appellants who were the 1st and 2nd Respondents in Appeal No. CA/L/382/2014 before this Court, and who had appealed against the judgment of this Court to the Supreme Court in Appeal No. SC/116/2015 are under a legal duty to await the decision of the Supreme Court on the same subject matter, issues and same parties and their privies in the present Suit. I find it disturbing, the attitude of the Appellants in filing this fresh Suit whose sole aim appears to me to be nothing other than to overreach their own appeal already pending before the Supreme Court, which appeal if it succeeds is simply for the re-opening of Suit No. FHC/L/CS/488/2011, which proceedings have been stayed by the judgment of this Court. The mala fide in the filing of the present Suit by the Appellants is all too evident and in my finding, rendered this present Appellants’ Suit a clear abuse of Court process. They are under a duty to await the outcome of their appeal to the apex Court in the land, and unless and until they withdraw it of their own volition with or without the leave of the Apex Court as may be allowed by the Rules of the apex Court, the Appellants cannot be indulged in their vaunting ambition to brazenly attempt, as it were by the filing of their new Suit, to circumvent the decision of this Court staying the proceedings in Suit No. FHC/L/CS/488/2011. See Abu V. Odugbo (2001) 14 NWLR (Pt. 732) 45.
In Dingyadi V. INEC (No. 1) (2011) 18 NWLR (Pt. 1224) 75, the Supreme Court per Muntaka – Coomasie JSC., held inter alia thus:
“It is trite that, where two actions of the same nature and between same parties and subject matter are being prosecuted concurrently before same Court or different Courts, itis the latter in time that vacates… While on the run between the Courts, the Appellants filed the action before the Federal High Court first. It is by law the latter suit filed in Sokoto that will vacate for the Abuja proceedings to continue”

My lords, in the circumstances of this appeal, I cannot but agree completely with the apt and unassailable submissions of the learned counsel for the 1st Respondent that, it is not and has never been in any doubt that this Court has a duty to halt and terminate, on application by a party, any proceeding that is found to amount to abuse of Court process since we have the inherent jurisdiction to prevent abuse of Court process by frivolous and/or vexatious proceedings before us or before the Court below whenever it is brought before us as it has been done herein. See Section 6(6)(b) of the Constitution of Nigeria, 1999 (as amended). See also Dingyadi V. INEC (2011) 10 NWLR (Pt. 1255) 347 @ pp. 412- 413; Agwasim V. Ojichie (2004) 10 NWLR (Pt. 882) 613 at 625.

​Now, what better words can be used to describe the action of the Appellants for them to ignore, without any legal justification as none had been shown in this appeal, their own pending appeal to the Apex Court against the judgment of this Court when they filed their ill–fated present Suit before the Court below on the same subject matter and issues and between the same parties and their privies? In law, a Suit premised on such faulty foundation is one which is nothing but a process in want of bona fide and thus constitutes an abuse of Court process, which to all intents and purpose was not meant to serve any useful purpose. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 @ p. 188, where the Supreme Court had opined inter alia thus:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions… It is recognized that, the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.”
​In the eyes of the law therefore, a process such as the Appellants’ present Suit No. Suit No. FHC/L/CS/195/2016, Between: The Vessel MT. Sylla, Global Energy SA. V. UT. Bank (Ghana) Limited and UT. Financial Services Limited, initiated in abuse of the Court process is devoid of any competence or life and thus was rightly terminated by the Court below in limine as it was so called upon to do by the 3rd Respondent, which was being put through the unenviable task of defending or opposing a process steeped in the abuse of Court process. See Ntuks V. NPA (2007) 130 NWLR (Pt. 1051) 392 @ pp. 419–420, where it was firmly stated that:
“Abuse of Court process generally means that, a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation merely to waste valuable litigation time… The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness”

Having found that the Appellants’ Suit No. FHC/L/CS/195/2016, Between: The Vessel MT. Sylla, Global Energy SA. V. UT. Bank (Ghana) Limited and UT. Financial Services Limited was commenced in abuse of the processes of the Court below and therefore, constitutes an abuse of Court process, in law, the proper order to be made is simply an order of dismissal to bring it to a definite end as was rightly done by the Court below. Indeed, in law, there is no room for any sentiment when it comes to dealing with matters or actions initiated or steps taken in abuse of the process of Court. See African Reinsurance Corp. V. JDP Construction (Nig.) Ltd (2003) 13 NWLR (Pt. 838) 609, where the Supreme Court laid this issue to rest on the proper order to be made when a suit or process constitutes an abuse of Court process, when it held alia thus:
“Where the Court comes to the conclusion that its process is abused, the proper Order is that of dismissal of the process”
This Court had also lent its voice to the devastating consequences on a process found to be an abuse of the Court processes in Dogari V. Waziri & Anor. (2016) LPELR – 40320 (CA) @ pp. 30-31, where it was reiterated inter alia thus:
“No matter how meritorious the case of a party may be once it is found to be an abuse of the Court processes that is the end of the matter. It becomes a closed chapter and the end of the road for such a matter instituted in abuse of the process of Court.”
In the light of all the findings above, issue one for determination is hereby resolved against the Appellants in favor of the Respondents.

ISSUE TWO
Whether an abuse of Court process is an issue of jurisdiction which can be raised at any time irrespective of the undefended List

APPELLANTS’ COUNSEL SUBMISSIONS
On his issue one, whether the Respondents having failed to comply with the provisions of the undefended list procedure, in Order 12(4) of the Federal High Court (Civil Procedure) Rules, 2009, the Court below was not bound to deliver judgment on the date fixed for judgment on the 16/6/2016, learned counsel for the Appellants had submitted that the Appellants brought their action under the Undefended list procedure of the Court below to which the Respondents merely entered a conditional appearance on 29/3/2016 but without filing their notice of intention to defend before the five days to the hearing of the matter fixed for 20/4/2016 as required by law and contended that the Court below, having in principle entered judgment for the Appellants on 20/4/2016 and adjourning the delivery of the judgment to 16/6/2016, there was in law, nothing more or left for the Court below to do than to proceed to enter final judgment in favor of the Appellants against the Respondents on 16/6/2016 and urged the Court to hold that, the Court below was in error when it failed to deliver its judgment under the Undefended list procedure on 16/6/2016 in favor of the Appellants and ignored the provision of Order 29 Rule 1(a), 4(a) 5 of the Federal High Court (Civil Procedure) Rules, 2009, and considered the Notice of Preliminary Objection filed on 17/5/2016 outside the 21 days as required by law and to allow the appeal and set aside the ruling of the Court below. Counsel referred to Order 12(3)(1),(4) of the Federal High Court (Civil Procedure) Rules, 2009 and relied on G.M.O.N. & S. Co. Ltd V. Akpata (2010) 9 NWLR (Pt. 1200) 453; M.C. Investment Limited V. C. I. & C. M. Ltd (2012) 12 NWLR (Pt. 1313) 1; J.O.E. Ltd V. Skye Bank Plc. (2009) 6 NWLR (Pt. 1138) 1.

1ST RESPONDENT’S COUNSEL SUBMISSIONS<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On issue two, learned counsel for the 1st Respondent had submitted that the issue of abuse of Court process is a threshold issue of jurisdiction and therefore, can be raised anytime during proceedings including judgment and contended that, once an issue of jurisdiction is raised, a Court is under duty to determine it first, since in law, where a Court does not have jurisdiction to hear a matter, the entire proceedings, no matter how well conducted and decided, would amount to a nullity and urged the Court to hold that the Court below was right to have heard and upheld the Notice of Preliminary Objection filed by the 3rd Respondent and to dismiss the appeal and affirm the ruling of the Court below. Counsel relied on Obiuweubi V. C.B.N (2011) 1 NWLR (Pt. 1247) 465 @ p. 494; Bronik Motors Ltd. and Anor V. Wema Bank Ltd. (1983) 1 SCNLR 296; Okoya V. Santilli (1990) 2 NWLR (Pt. 131) 172; Madukolu V. Nkemdilim (1962) 1 All NLR (Pt. 4) 587; Usman Dan Fodio University V. Kraus Thompson Organization Ltd. (2001) 15 NWLR (Pt. 736) 305.

​It was also submitted that, the Court below was right when it heard the 3rd Respondent’s Notice of Preliminary at the conclusion of hearing of the Appellants’ Suit under the Undefended list as required of it by law and contended that once an application was filed outside the 21 day threshold it can be heard at the conclusion of trial as was rightly done by the Court below and urged the Court to hold that once an issue of jurisdiction is raised as was done by the 3rd Respondent the Court below was under a duty to hear and determine it first, notwithstanding the stage of the case or that it was a matter under the Undefended list and to dismiss the appeal and affirm the ruling of the Court below. Counsel referred to Order 29 Rules (5) of the Federal High Court (Civil Procedure) Rules and relied on F.R.N. V. Gold (2007) 11 NWLR (Pt.1044) 1 @ pp. 18-19; Societe Bics A. Compagnie Moulages & Anor V. Charzin Ind. Ltd (2003-2007) 5 I.P.L.R 203 @ p. 226; Adejumo V. Military Governor, Lagos State (1972) 1 All NLR (Pt.1) 159; Enwesor V. Onyejiewe (1964) 1 All NLR14; Nasir V. Kano State Civil Service Commission (2010) 6 NWLR (Pt. 1190) 253 @ p. 276; Anyah V. Iyayi (1993) 7 NWLR (Pt. 305) and Kotoye V. Saraki (1994) 7 NWLR (Pt.357) 414 @ p. 466; Katto V. Central Bank of Nigeria (1991) 9 NWLR (Pt. 212) 126.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
On his issue two, which is assuming but not conceding that the Suit was not an abuse of Court process whether the Court below could have shut its eyes to the Defendants’ affidavit disclosing a defence, learned Senior Advocate for the 3rd Respondent had submitted that in law it is immaterial that a Notice of Intention disclosing a defence on the merit was filed outside the 5 days as stipulated in the Rules of the Court below, it ought to be considered by the Court below and contended that, even if a Statement of Defence or Notice of Intention to defend was filed in out of time, being a mere irregularity, it remains valid until it is set aside and would still be used by the Court to consider if the Appellants were entitled to judgment and urged the Court to so hold and to discountenance the contentions by the learned counsel for the Appellants that the Court below ought not to have considered the 3rd Respondent’s Notice of Intention to defence disclosing a reasonable defence merely because it was filed out of time. Learned SAN relied on United Bank for Africa V. Dike Nworah (1978) 11 & 12 SC 1 @ p. 67; Nishizawa Ltd V. Jethwani (1984) NSCC 877; U.T.C. (Nig.) Ltd V. Pamotei (1989) 2 NWLR 244;

APPELLANTS’ COUNSEL REPLY SUBMISSIONS TO 1ST RESPONDENT
The Appellants’ reply to the 1st Respondent under issue two is still affected by the virus of repetition and re-arguing the appeal contrary to the purpose of a reply brief under Order 19 Rules 5 (1) of the Court of Appeal Rules, 2016. However, I shall merely for the purpose of completeness in this judgment proceed to review the submissions of the Appellants’ reply brief to the 1st Respondent, albeit briefly.

It was submitted that, under the Rules of the Court below, the Affidavit of the 3rd Respondent in support of its Notice of Intention to Defend having been filed outside the 5 days to the hearing as allowed can only be used with the leave of the Court below and contended that, no such leave having been sought and or obtained there was in law no Notice of Intention to Defend before the Court below and urged the Court to hold that the Court below was thus under a duty to enter judgment in favour of the Appellants under the Undefended List procedure and therefore, fell into grave error when it failed to do so and rather proceeded to dismiss the Appellants’ Suit for being an abuse of Court process and to allow the appeal and set aside the ruling of the Court below and enter judgment for the Appellants as per their claims against the Respondents. Counsel referred to Order 27 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2009 and relied on Adams V. Umar (2009) 5 NWLR (Pt. 1132) 73; Ifeanyichukwu TIV. Ltd V. OCB. Ltd (2015) 17 NWLR (Pt. 1487)9; M.C Investment Limited V. C.I. & C. M. Ltd (2012) 12 NWLR (Pt. 1313) 1; Ben Thomas Hotel Ltd V. Sebi Furniture Ltd (1989) 5 NWLR (Pt. 123) 523; UTC (Nig.) Ltd V. Pamotei (1989) 2 NWLR (Pt.103) 244; UAC (Tech) Ltd V. Anglo Canadian Cement Ltd (1966) NMLR 349.

It was also submitted that, the Court below, having entered judgment on 20/4/2016 in principle in favor of the Appellants against the Respondents under the Undefended list procedure became funtus officio to further entertain any other incompetent applications and contended that the Court below was in error when after entering judgment for the Appellants it proceeded to entertain the 3rd Respondent’s preliminary objection and dismissed the Appellants’ Suit and to allow the appeal and set aside the perverse ruling of the Court below.

APPELLANTS’ COUNSEL REPLY SUBMISSIONS TO 3RD RESPONDENT
The Appellants’ reply to the 3rd Respondent under issue two was also affected by the virus of repetition and re-arguing the appeal contrary to the purpose of a reply brief under Order 19 Rules 5 (1) of the Court of Appeal Rules, 2016. However, I shall merely for the purpose of completeness in this judgment proceed to review the submissions of the Appellants’ reply brief to the 1st Respondent, albeit briefly.

It was submitted that the Court below, having in principle, entered judgment on 20/4/2016 in favour of the Appellants under the Undefended List procedure, there was in law, under the Rules of the Court below, nothing more left for the Court below to do on 16/6/2016 than to proceed to enter final judgment in favor of the Appellants against the Respondents and contended that the 3rd Respondent’s preliminary objection as well as its Notice of Intention to Defend filed outside the time limited by the Rules of the Court below ought not to have been heard by the Court below in breach of its Rules of Court and urged the Court to hold that the Court below was in error when on 16/6/2021 it failed to enter final judgment, being a mere formality having already granted the Appellants’ application for judgment on 20/4/2016 and to allow the appeal and set aside the ruling of the Court below and enter judgment for the Appellants as per their claims against the Respondents. Counsel referred to Order 12 (3) & (4) and Order 29(1)-(4) of the Federal High Court (Civil Procedure Rules) 2009, and relied onJ.O.E. Ltd V. Skye Bank Plc.(Supra).

RESOLUTION OF ISSUE TWO
My lords, issue two deals frontally with the vexed issue of, whether in a Suit placed under the Undefended list, the Court below can on the return date for the hearing of the Suit entertain any other application safe a consideration of the Notice of Intention to Defence if any has been validly filed and proceed to determine whether it disclosed defence or triable issue and if does then to transfer the Suit to the General Cause List, but if it does not then to enter judgment in favour of the Claimant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now, whilst it is the vehement contention of the Appellants that the Respondents, having not filed their Notice of Intention to Defend before 5 days to the hearing date as limited by the Rules of the Court below and the Notice of Preliminary Objection having also not been filed within 21 days as allowed by the Rules of the Court below, the Court below had no other option on 16/6/2016 than to proceed to enter final judgment in favour of the Appellants as per their claims against the Respondents, it was also the vehement contention of the Respondents that the issue of abuse of Court process raised in the Notice of Preliminary Objection is a threshold issue of jurisdiction and which, having been raised must be determined first notwithstanding the stage or nature of the proceedings before the Court below, be it under the General Cause list or under the Undefended Cause list.

Over the years, it has become trite in our law that the issue of abuse of Court process is a jurisdictional issue, and being a jurisdictional issue, it can be raised at any time or stage in the proceeding before the Court and notwithstanding the nature of the proceedings and because of fthe importance of jurisdiction, it can be raised by either of the parties or even suo motu by the Court and can even be raised for the very first time before this Court or even at the apex Court. This is because, competence is the soul and/or epicentre of adjudication and without it, there cannot be any valid adjudication and any resultant valid outcome in the Courts. See Usman V. Baba (2004) 48 WRN 47; A.G. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 511 @ p. 566; Utih V. Onoyivwe (1991) 1 NWLR (Pt.166) 166; A.G. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 511 @ p. 566; Utih V. Onoyivwe (1991)1NWLR (Pt.166) 166.
In A.G. Lagos State V A.G. Federation and 35 Ors [2014] 9 NWLR (Pt. 1412) 217 @ p. 249; the Supreme Court per Muhammad, JSC had poignantly restated the position of the law on ause of Court process inter alia thus:
“Courts including the apex Court, lack the jurisdiction of entertaining incompetent claims and/or those that constitute abuse of their processes. They proceed in vain if they do. Being bereft of the necessary vires or with their processes having been abused, the decisions which eventually arise, lack the authority and so remain unenforceable no matter how well conducted the proceedings that brought them about were. A judgment given without jurisdiction creates no legal obligation and does not confer any rights to any of the parties.”
It is thus true and as rightly and unassailably submitted by the learned Senior Advocate for the 3rd Respondent that, a complaint that an action is an abuse of Court process is a jurisdictional issue and being a jurisdictional issue, it is a threshold matter and fundamental as it goes to the competence of the Court below to hear and determine a Suit. In law, where a Court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided, would amount to a nullity. It is therefore, mandatory that Courts must decide the issue of jurisdiction once raised before them before proceeding to consider either the merit or any other matter in the case. SeeA.G. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 511 @ p. 566. See also Utih V. Onoyivwe (1991) 1 NWLR (Pt.166) 166.

However, by Order 29 Rules 1, 2, 3 and 5 of the Federal High Court (Civil Procedure) Rules, it provided thus:
1. Where a Defendant wishes to:-
a. Dispute the Court’s Jurisdiction to try the claim; or
b. Argue that the Court should not exercise its jurisdiction, he may apply to the Court for an Order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have, and the Court may take such application together with the Plaintiff’s substantive suit in so far as the substantive suit does not involve the taking of oral evidence.
2. A Defendant making such application must first file along with the application a memorandum of conditional appearance stating that he is appearing conditionally.
3. A Defendant who files a memorandum of appearance does not, by so doing, lose any right that he may have to dispute the Court’s jurisdiction.
4. An application under this order shall:-
a. Be made within twenty-one days after service on the Defendant of the origination process, and
b. Be supported by affidavit where it is not based on ground of law alone.
5. If the Defendant files an acknowledgement of service and does not make such application within the period specified in Rule 4 of this Order, any such application can only be taken at the conclusion of the trial.

On 20/4/2016, the Court below heard the Appellants’ Suit and granted the Appellants’ application that the matter be proceeded with, under the Undefended List to judgment in the absence of any Notice of Intention to Defend by the Respondents and adjourned the matter to 16/6/2016 for judgment. However, on 17/5/2016 the 3rd Respondent filed a Notice of Preliminary Objection as well as its Notice of Intention to Defend together with an Affidavit disclosing its defence to the claims of the Appellants. On 16/6/2016, the date initially fixed for the delivery of its final judgment, but with the issue raised in the preliminary, abuse of Court process, being an issue touching on the competence of the Appellant’s Suit, the Court below proceeded to hear the preliminary objection challenging the competence of the Appellants’ Suit on ground of abuse of Court process and adjourned the matter to 1/7/2016 for ruling/judgment.

​The issue here is whether the above procedure adopted by the Court below was permissible under its Rules of procedure vide Order 12(3) & (4) and Order 29 (1) – (5) of the Federal High Court (Civil Procedure) Rules, 2009? ​Looking at the proceedings before the Court below on 20/4/2016 and 16/6/2016, it is clear and I so hold, that the 3rd Respondent’s preliminary objection was taken at the close of the Appellants’ case, which had already been adjourned for judgment from 20/4/2016, when it was heard under the Undefended List to 16/6/2016 when it was fixed for judgment under the Undefended List procedure. Thus, in my finding, when on 16/6/2016 the Court below proceeded to hear the 3rd Respondent’s Notice of Preliminary Objection and adjourned the matter to 1/7/2016 for ruling/judgment, it acted perfectly in line with and in consonance with the succinct provisions of Order 29 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2009. See pages 177-178 and 304-308 of the Record of Appeal.

My lords, assuming but without so deciding that, the Court below had even heard the 3rd Respondent’s preliminary objection in contravention of the 21 days provisions of Order 29(1)-(4) of the Rules of the Court below, would that in law vitiate both the hearing of the preliminary objection and the ruling thereon by the Court below? I think not! See Order 29 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2009.
Now, the challenge to the competence of the Appellants’ Suit was one founded on the jurisdictional competence of the Court below to entertain a Suit founded on an abuse of Court process. In my view, in such circumstances, there was a legal duty on the Court below to hear the challenge to its jurisdiction even if the preliminary objection was filed long after the 21 days of service of the Originating process on the Respondents. In law, the issue of competence and ultimately lack of jurisdiction in an adjudicating body, such as a Court of law, and by extension, the substantive principles of law on when a Court can be said to have jurisdictional competence to adjudicate over a cause or matter, is beyond Rules of Court and cannot be derogated therefrom by Rules of Court.
In other words, no Rules of Court, including the provisions of Order 29 Rules 1-4 of the Rules of the Court below, can override the substantive law on jurisdiction. Indeed, Rules of Court are mere handmaid to the Court in the quest for justice and are only but a guide to the Court in the due administration of justice. Therefore, the Rules of Court can neither dictate how and when an issue of jurisdiction can be raised nor can it bind a Court of law, which is as well a Court of justice, to foist any form of injustice on the parties, such as where an incompetent matter must be determined on the merit merely because the issue of incompetence was raised after 21 days of the service of the Originating processes on a Defendant, when in law, the issue of jurisdiction can be raised at any stage and at any time in the proceedings and even for the first time on appeal either to this Court or even to the apex Court. See Madukolu V. Nkemdilim (1962) 1 All NLR (Pt. 4) 587. See also Obiuweubi V. C.B.N (2011) 1 NWLR (Pt. 1247) 465 @ p. 494; Bronik Motors Ltd. and Anor V. Wema Bank Ltd. (1983) 1 SCNLR 296; F.R.N. V. Gold (2007) 11 NWLR (Pt.1044) 1 @ pp. 18 – 19.
In Societe Bics A. Compagnie Moulages & Anor V. Charzin Ind. Ltd (2003-2007) 5 I.P.L.R 203 @ p. 226, this Court per Muhammad JCA (as he then was but later JSC) had held inter alia thus:
“In the instant case, Appellants has not filed their Statement of Defence. In spite of the fact that the Appellants had chosen to raised their preliminary objection in a manner unknown to law, it must be appreciated that had it been manifest from Respondent’s Writ and claim that the action against the Appellants was fundamentally defective and untenable, it would have been proper for the Court to dismiss the action without waiting for the Appellants to file their pleadings. It has been held that where the point of law raised is founded on lack of jurisdiction, it is possible to apply for dismissal of the action even before the fulfillment of the conditions stipulated by the rules of Court for raising the objection. The Court falls back, at such moments, to its inherent jurisdiction which persists in spite of the rules of Court. This must be so because the Court could only assume jurisdiction, anyway, if same had existed”
It has been reiterated by the Supreme Court per Ogbuagu, JSC in Nasir V. Kano State Civil Service Commission (2010) 6 NWLR (Pt. 1190) 253 @ p. 276 inter alia thus:
“It is now firmly settled that issue of jurisdiction or competence of a Court to entertain or deal with a matter before it, is very fundamental. It is a point of law and therefore, a rule of Court, cannot dictate when and how, such point of law can be raised. Being fundamental and threshold issue of jurisdiction, it can be raised at any stage of the proceedings in any Court including this Court. An Appellant Court can even raise it suo motu”
So, can it be contended with any seriousness and validity as was done by the Appellants in this appeal that in law, the issue of jurisdiction has no place in matters placed under the Undefended Cause List? I think not! In my view, that would not only be ridiculous but would also amount to saying that in law, once a matter is placed under the Undefended Cause List of the Court, regardless of whether it has the jurisdiction or not on whatever grounds, the Court nevertheless is still entitled to proceed to enter judgment even in a matter over which it has not the jurisdiction or is incompetent before the Court. I do not think that can be the correct position of the law since jurisdiction is both radical and fundamental and is indeed the epicenter of all adjudications, for without it, there can be no competence in any adjudication as well as the resultant judgment which would thereby be rendered a nullity. See Madukolu V. Nkemdilim (1962) 1 All NLR (Pt. 4) 587. See also Obiuweubi V. C.B.N (2011) 1 NWLR (Pt. 1247) 465 @ p. 494; Bronik Motors Ltd. and Anor V. Wema Bank Ltd. (1983) 1 SCNLR 296.
In the circumstances of the entirety of the facts and proceedings before the Court below therefore, I find that the Court below was right when it heard and determined the 3rd Respondent’s Notice of Preliminary Objection challenging the competence of the Appellants’ Suit, notwithstanding the fact that the Appellants’ Suit was placed and heard under the Undefended Cause list of the Court below. Indeed in law, the Court below has no power and therefore, lacks the jurisdiction to enter judgment in any cause or matter which is incompetent before it and thereby robs it of its jurisdiction merely because the Suit was placed and heard under the Undefended Cause list procedure. A Suit, no matter by what means or howsoever it was commenced, is subject to the issue of jurisdiction and if raised, it must be determined first one way or the other before, if need be, the merit of the case could be considered if it survives the onslaught of the jurisdictional question. This indeed, is the law!

In the light of all the above, issue two for determination is hereby resolved against the Appellants in favor of the Respondents.

On the whole therefore, having resolved issues one and two against the Appellants in favor of the Respondents, I hold that this appeal is bereft of any iota of merit and is thus liable to be dismissed in its entirety. Accordingly, I hereby so dismiss it.

In the result, the Ruling of the Federal High Court, Lagos Judicial Division, Coram: Hadiza R. Shagari J. in Suit No. FHC/L/CS/195/2016: The Vessel MT. Sylla & Another V. Ghana Commercial Bank Ltd & Others delivered on 4/7/2016, in which the Appellants’ Suit against the Respondents was dismissed for being an abuse of Court’s process, is hereby affirmed.

There shall be cost of N200,000 against the Appellants in favor of each of the 1st and 3rd Respondents only.

JUDGMENT ON CROSS APPEAL OF 3RD RESPONDENT/CROSS APPELLANT
This is a Cross appeal against that part of the Ruling of the Federal High Court, Lagos Judicial Division, Coram: Hadiza R. Shagari J. in Suit No. FHC/L/CS/195/2016: The Vessel MT. Sylla & Another V. Ghana Commercial Bank Ltd & Others delivered on 4/7/2016, in which the request for cost by the 3rd Respondent/Cross Appellant against the Appellants/Cross Respondents was refused by the Court below.

The Notice of Cross Appeal by the 3rd Respondent was filed on 29/10/2019 but was deemed as properly filed on 25/1/2021. The 3rd Respondent/Cross Appellant’s brief was filed 29/10/2019 but was deemed as properly filed on 25/1/2021. The Appellant/Cross Respondent’s brief was filed on 22/11/2019 but was deemed as properly filed on 25/1/2021. The 3rd Respondent/Cross Appellant’s reply brief 30/1/2020 but was deemed as properly filed on 25/1/2021. The 2nd Respondent, though duly served with all the processes in this appeal as well as being served with a hearing notice on 21/1/2021 through counsel, neither filed any brief nor participated at the hearing of this cross appeal.

​At the hearing of the 3rd Respondent/Cross Appellant’s Cross Appeal on 25/1/2021, L. C. Okoli SAN, learned Senior Advocate for the 3rd Respondent/Cross Appellant, appearing with S. C. Ndudim Esq., adopted the 3rd Respondent/Cross Appellant’s brief and 3rd Respondent/Cross Appellant’s reply brief as their arguments and urged the Court to allow the 3rd Respondent/Cross Appellant’s Cross Appeal and set aside that part of the Ruling of the Court below. On his part, P. Amaran Esq., learned counsel for the Appellants/Cross Respondent adopted the Appellants/Cross Respondents’ brief as his arguments and urged the Court to dismiss the 3rd Respondent/Cross Appellant’s Cross Appeal and affirm that part of the ruling of the Court below.

BRIEF STATEMNT OF FACTS IN THE CROSS APPEAL
Before the Court below, the Cross Appellant as the 1st Defendant had challenged by way of a Notice of Preliminary Objection the competence of the Cross Respondent’s Suit as Claimant on the ground that the Cross Respondents’ Suit No.FHC/L/CS/195/2016: The Vessel MT. Sylla and Global Energy SA. V. UT Bank (Ghana) Limited and UT Financial Services Nigeria Limited, on the face of the pendency of the both the Cross Respondents’ earlier Suit No. FHC/L/CS/488/11: The Vessel MT. Sylla and The owners and All Persons Interested in the Vessel MT. Sylla V. Morgan Energy Limited, UT Bank (Ghana) Limited and UT Financial Services Nigeria Limited before the Court below and the Cross Respondents as Appellants’ appeal against the judgment of this Court in the said case to the Supreme Court, clearly constituted an abuse of Court process and was therefore rightly dismissed by the Court below on 4/7/2016. However, the Court below in rightly upholding the Cross Appellant’s preliminary Objection and dismissing the Cross Respondents’ Suit was wrong when it refused to grant the Cross Appellant’s application for cost against the Cross Respondents, hence this Cross Appeal. See pages 1-4, 296, 311-312 and 313-321 of the Record of Appeal.

On the part of the Cross Respondents, on the facts and circumstances of the entire facts and proceedings before the Court below, this was not a proper case for the award of any cost against the Cross Respondent and the Court below rightly exercised its discretion judiciously and judicially to refuse the Cross Appellant’s application for cost. See pages 311-312 of the Record of Appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ISSUES FOR DETERMINATION
In the 3rd Respondent/Cross Appellant’s brief, a sole issue was distilled as arising for determination from the sole ground of Cross Appeal, namely:
“Whether having succeeded at the Court below, the Cross Appellant was entitled to costs to assuage the expenses incurred in defending the Appellants’ Suit?”

In the Appellants/Cross Respondents’ brief, the sole issue as distilled in the 3rd Respondent’s/Cross Appellant’s brief as arising for determination in this Cross appeal was adopted as the sole issue for determination in the Cross Appeal.

My lords, since both parties in the Cross Appeal are ad idem on the only issue arising for determination in the Cross Appeal, and having satisfied myself that the sole issue as agreed upon by both does flow from the ground of appeal in the Cross appeal, I hereby adopt it as the sole issue for determination in this Cross Appeal.

SOLE ISSUE
Whether having succeeded at the lower Court, the Cross Appellant was entitled to costs to assuage the expenses incurred in defending the suit?

3RD RESPONDENT/CROSS APPELLANT’S COUNSEL SUBMISSIONS

On the sole issue, learned Senior Advocate for the 3rd Respondent/Cross Appellant had submitted that the Court below having in a well-considered ruling upheld the preliminary objection of the 3rd Respondent/Cross Appellant and dismissed the Appellants’ Suit on the ground that it was an abuse of Court process, it ought to have granted the 3rd Respondent/Cross Appellant’s application for cost since in law, cost follows the event and contended that the refusal to award cost to the 3rd Respondent, the successful party, amounted to injudicious exercise of its discretion by the Court below which was under a legal duty to exercise its discretion judicially and judiciously and urged the Court to so hold and to allow the Cross appeal and set aside the Order of the Court below refusing to award cost to the 3rd Respondent/Cross Appellant and to award cost in favour of the 3rd Respondent/Cross Appellant against the Appellants/Cross Respondents. Learned SAN relied on Layinka V. Makinde (2002) 24 WRN 1.

It was also submitted that, before the Court below, there was no circumstance in the entire proceedings which disentitled the 3rd Respondent/Cross-Appellant from an award of costs and contended that it was obvious that the 3rd Respondent/Cross-Appellant had incurred expenses in defending a matter which was filed against it in abuse of Court process and therefore, the Appellants/Cross-Respondents ought to have been made to bear the costs of the proceedings before the Court below and urged the Court to so hold and to allow the Cross Appeal and set aside the Order of the Court below refusing to award cost to the 3rd Respondent/Cross-Appellant and to award cost to it against the Appellants/Cross-Respondents.

APPELLANTS/CROSS-RESPONDENTS’ COUNSEL SUBMISSIONS
On the sole issue, learned counsel to the Appellants/Cross Respondents had submitted that the issue of award of cost is at the discretion of the Court and contended that at any rate, the 3rd Respondent/Cross-Appellant does not have a right of appeal over the refusal of the Court below to award of cost and urged the Court to hold that, without the prior leave of Court, the Cross Appeal on cost alone was incompetent and to dismiss the Cross Appeal for lacking in competence and in merit and to affirm the refusal of the Court below to award cost in favor of the 3rd Respondent/Cross Appellant against the Appellants/Cross-Respondents. Counsel referred to Section 14(2) of the Court of Appeal Act, 2004.

3RD RESPONDENT/CROSS APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned Senior Advocate for the 3rd Respondent/Cross Appellant had submitted that discretion of the Court is to be exercised judicially and judiciously and contended that the Cross-Appeal not being against interlocutory decision of the Court below relating to cost alone but against an Order of the Court below in its final judgment, in law, no leave of the Court was required for the filing of the Cross-Appeal by the 3rd Respondent/Cross Appellant and urged the Court to so hold and to allow the Cross-Appeal and set aside the Order of the Court below refusing to award cost in favor of the 3rd Respondent/Cross-Appellant against the Appellants/Cross-Respondents and to award cost in favor of the 3rd Respondent/Cross-Appellant against the Appellants/Cross-Respondents for the proceedings before the Court below that ended in favor of the 3rd Respondent/Cross-Appellant. Learned SAN referred to Section 14  (1) & (2) of the Court of Appeal Act, 2004, and relied on Orah V. Orah and Ors (2014) LPELR – 23397 (CA).

RESOLUTION OF THE SOLE ISSUE
My lords, the sole issue for determination in this Cross Appeal is within a very narrow compass and I intend in this judgment to circumscribe it within its narrow confine and resolve the question whether taking the totality of the circumstances of the proceedings before the Court below was the 3rd Respondent/Cross-Appellant entitled to cost against the Appellants/Cross-Respondents and was the Court below right or wrong when it refused to award cost in favour of the 3rd Respondent/Cross-Appellant against the Appellants/Cross-Respondents?

Now, on 4/7/2016 after the delivery of the judgment by the Court below, the following proceedings ensued with regards to cost as between the parties and the Court below, namely:
“Defendant: For bringing us to Court meanwhile (sic) we are at the Supreme Court, we apply for cost
Plaintiff: I do not concede to cost
Court: The application for cost is not granted. Parties should bear their cost.” See page 311-312 of the Record of Appeal.

​In law, every Court established by the Constitution in this Country can aptly be described as a Court with the power to exercise discretion, being a Court of law and equity. Thus, once an exercise of discretion by a Court is not in any way capricious or injudicious or whimsical but rather judicial and judicious, then, that is the end of the matter and no appellate Court worth its name would or rather should for the mere show of superiority interfere with or disturb a lower Court’s proper, judicious and judicial exercise of its discretion. Thus, an appellate Court should be very wary of setting aside the exercise of discretion by a lower Court as an appellate Court is not at liberty to substitute its own discretion for the discretion already exercised by the lower Court, except where the appellate Court reaches a clear conclusion that there has been a wrongful exercise of discretion in that, no weight or no sufficient weight was given to relevant consideration or that the exercise was done mala fide or arbitrarily or illegality or considering extraneous matter or whimsically. SeeAdamu V. Isa (2014) LPELR – 24169 (CA) per Georgewill JCA. See also, Ikenta Best Nig. Ltd. V. A.G. of Rivers State ​(2009) 6 NWLR (Pt. 1084) 61; UBA V. Stahlbau GMBH (1989) 3 NWLR (Pt. 110) 317.

It follows therefore, that in every case, where the exercise of discretion is challenged then, the appellate Court is bound to look at the surrounding circumstances to determine whether the Court below exercised its discretion judicially and judiciously or arbitrarily. However, due to the overriding need not to unnecessarily fetter the exercise of discretion by trial Courts, it is not in all cases that an appellate Court will interfere with the exercise of discretion by a trial Court, simply because it did not favour one of the parties litigating before it. The appellate Court will not interfere with the exercise of the discretion in the absence of proof that it has been wrongly exercised. Consequently, one cannot lay down any hard and fast or immutable principles or rules as to the exercise of judicial discretion by a Court because, the moment that is done, then discretion becomes unnecessarily fettered from the onset and would thus losses its taste! See Hon. Justice Kalu Anyah V. African Newspapers of Nigeria Ltd (1992) 2 NWLR (Pt. 247) 319; Chief Ikechukwu V. Hon. Tony Nwoye & Ors (2014) 4 NWLR (Pt. 1397) 227.

This is a case in which the Appellants/Cross-Respondents had approached the Court below for damages against the Respondents, including the 3rd Respondent/Cross-Appellant, resulting from the arrest of the Appellants’ Vessel and the subsequent discharge of the Order of arrest. The 3rd Respondent/Cross-Appellant had challenged the competence of the Appellants/Cross-Respondents’ Suit and the Court below, which had already adjourned the Appellants/Cross-Respondents’ Suit for judgment under its Undefended Cause list, proceeded to hear and upheld the 3rd Respondent/Cross-Appellant’s challenge to the competence of the Appellants/Cross-Respondents’ Suit and thereby, dismissing the Appellants’/Cross-Respondents’ Suit for being an abuse of Court’s process.

Now, here is a party, the 3rd Respondent/Cross-Appellant, who did not file its processes before the Court below within the time as required by the Rules of the Court below and also did not seek and obtain the leave of the Court below to do so out of time as allowed by the Rules of the Court below but had nevertheless filed its processes out of time of its own volition and without the leave of the Court below. Also, here is a party whose obvious tardiness the Court below overlooked and indulged it to hear its Notice of Preliminary Objection because and as expected in law of the Court below, it raised an issue of jurisdiction and which the Court below eventually found in favor of the 3rd Respondent/Cross-Appellant against the Appellants/Cross-Respondents. Thus, the merit or otherwise of the Appellants/Cross-Respondents’ Suit was no longer under consideration by the Court below. The merit of the Appellants/Cross-Respondents’ case was therefore, neither considered nor determined. It was in these circumstances, that the Court below had, in the exercise of its undoubted discretion to award or refuse to award cost, refused to award cost to the 3rd Respondent/Cross Appellant against the Appellants/Cross Respondents.

So, was the exercise of its discretion by the Court below capricious and/or without any regards to the facts and circumstances of this case? In other words, was the exercise of the discretion by the Court below injudicious? I think not! Was the discretion exercised judicially and judiciously by the Court below? I believe so! In the circumstances as highlighted above, and the entire proceedings before the Court below, was the 3rd Respondent/Cross-Appellant entitled to cost as was requested by it against the Appellants/Cross-Respondent? I think not! So, was the Court below wrong when it refused to grant the application for cost by the 3rd Respondent/Cross-Appellant against the Appellants/Cross-Respondents? I still do not think so! I hold that the Court below was perfectly right when it refused to award cost to the 3rd Respondent/Cross-Appellant against the Appellants/Cross-Respondents and ordered the parties to bear their respective cost. There is therefore, no iota of merit in the Cross Appeal of the 3rd Respondent/Cross-Appellant. It is thus liable to be dismissed.

At any rate, and notwithstanding, the findings above that the Cross-Appeal lacks merit, was the Cross Appeal itself competent in law? There is no doubt, and the parties are ad idem that the Cross-appeal is solely against the refusal by the Court below to award cost. The question that readily arises is, whether the Cross-Appeal relating to cost alone lies as of right against or with leave of Court?

Having considered the submissions of counsel to the parties in the light of the provisions of the Constitution of Nigeria, 1999 (as amended), I am of the firm view that the Cross-appeal relating to cost only is one that lies to this Court with the leave of Court only. It does lie as of right. Thus, without the requisite prior, leave of Court first sought and obtained, the 3rd Respondent/Cross-Appellant’s Notice of Appeal filed on 29/10/2019 as of right was grossly incompetent and therefore, liable to be struck out. The question of competence is a threshold issue of jurisdiction and is a fundamental one. Thus, jurisdiction is the life blood or epicenter of every cause or action or matter in our Courts, and therefore, where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter and so, it is it with this Cross-Appeal! See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also P. E. Ltd. v. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 693; A.G. Lagos State V. Dosunmu(1989) 3 NWLR (Pt. 111) 552.

​By paragraph (C) of Subsection (2) of Section 241 of the Constitution of Nigeria, 1999 (as amended), ​ it is provided inter alia thus:
Section 241(2): Nothing in this Section shall confer any right of appeal:-
(c): Without the leave of the Federal High Court or a High Court or the Court of Appeal from a decision of the Federal High Court or a High Court … as to cost only.

In law, where a ground of Appeal or Cross Appeal falls within the ambit of Section 241(2)(C) of Constitution of Nigeria, 1999 (as amended), as to cost only, it does not matter whether the decision appealed against is final or interlocutory, the Appeal or Cross-Appeal lies only with the leave of either the Court below or this Court. Thus, leave of Court is required to confer validity on such an Appeal or Cross-Appeal. The leave of Court is a condition precedent to the validity of the Cross-Appeal of the 3rd Respondent/Cross-Appellant relating to cost only. Consequently, the Cross-Appeal of the 3rd Respondent/Cross-Appellant filed without the prior requisite leave of Court is incompetent and therefore, liable to be struck out. See Ogunde V. Abdulsalam (2017) LPELR – 41875 (CA) per Georgewill JCA. See also, Metal Construction (W. A) Ltd v. Migliore & Ors (1990) 1 NWLR (Pt. 126) 299; Odunukwe V. Ofomata (2010) 18 NWLR (Pt.1225) 404. 1 @ P.1 45.

In the light of all the above, the sole issue for determination is hereby resolved against the 3rd Respondent/Cross-Appellant in favor of the Appellants/Cross-Respondents.

On the whole therefore, having resolved the sole issue for determination in the Cross-Appeal against the 3rd Respondent/Cross-Appellant, I hold that the Cross-Appeal is both incompetent and lacking in merit and thus liable to be struck out for being incompetent and/or dismissed in its entirety for lacking in merit. Consequently, I hereby so strike it out for being incompetent and/or dismissed it for lacking in merit.

In the result, that part of the Ruling of the Federal High Court, Lagos Judicial Division, Coram: Hadiza R. Shagari J. in Suit No. FHC/L/CS/195/2016: The Vessel MT. Sylla & Another V. Ghana Commercial Bank Ltd & Others delivered on 4/7/2016, in which the request for cost by the 3rd Respondent/Cross-Appellant against the Appellants/Cross-Respondents was refused by the Court below, is hereby affirmed.

​There shall be cost of N200,000 against the 3rd Respondent/Cross-Appellant in favour of the Appellants/Cross-Respondents only.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA and I am in agreement with his reasoning and conclusion in resolving the sole issue for determination in the Cross-Appeal against the 3rd Respondent/Cross-Appellant and holding that the Cross-Appeal is incompetent. I abide by other consequential orders made thereto.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of in draft, the judgment just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA. His Lordship dealt exhaustively with all the issues in this appeal and resolved them admirably. He has sufficiently covered the field room for further comments, except to agree with him that the appeal lacks merit and should be dismissed.

On the cross appeal, it is trite that an appeal against an order bordering on costs even though made in a final judgment is an appeal against a distinct order for which leave must be sought. See MEKWUNYE VS. EMIRATES AIRLINES (2019) 9 NWLR (PT. 1677) 191; OKETADE VS. ADEWUNMI (2010) 8 NWLR (PT. 1195) 63; ONUIGBO VS. NWEKESON (1993) 3 NWLR (PT. 283) 533; UNIFAM INDUSTRIES LIMITED VS. OCEANIC BANK INTERNATIONAL (NIG) LTD (2005) 3 NWLR (PT.911) 83. I agree that the Cross appeal is incompetent for failure of the cross appellant to seek leave and should be struck out. I also strike it out and abide by all the orders contained in the lead judgment including the order as to costs.

Appearances:

P. Amaran, Esq. For Appellant(s)

O .B. Oregbemhe, Esq. – for the 1st Respondent
L. C. Okoli, SAN, with him, S. C. Ndudim, Esq. – for the 3rd Respondent/Cross Appellant For Respondent(s)