UMAR BAHAGO WATER ENGR SERVICES LTD & ANOR v. AYUDIDIBE MEGA VENTURES (NIG) LTD & ORS (2020)

UMAR BAHAGO WATER ENGR SERVICES LTD & ANOR v. AYUDIDIBE MEGA VENTURES (NIG) LTD & ORS

(2020)LCN/15724(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, April 22, 2020

CA/YL/03/2019

Before Our Lordships:

Chidi NwaomaUwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. UMAR BAHAGO WATER ENGINEERING SERVICES LTD. 2. ALHAJI UMARU BAHAGO APPELANT(S)

And

1. AYUDIDIBE MEGA VENTURES (NIG.) LTD 2. AYUBA WANDA JONAH 3. FIELDRILL NIG. LTD RESPONDENT(S)

RATIO:

THE ABUSE OF COURT PROCESS CONTEMPLATES MULTIPLICITY OF SUITS

DISMISSAL OF AN ACTION IF IT IS AN ABUSE OF PROCESS OF COURT

Where an action is an abuse of process of Court, the process is liable to dismissal. This is because abuse of Court process is not merely an irregularity that can be pardoned but constitutes a fundamental defect which will lead to dismissal of the process which is the abuse. See Igbeke v. Okadigbo & Ors (2013) LPELR – 20664 and Dingyadi & Anor v. I.N.E.C. (2011) LPELR – 950 SC. JAMES SHEHU ABIRIYI, J.C.A

MISUNDERSTANDING OF THE CONCEPT OF ABUSE OF COURT PROCESS

The 1st and 2nd Appellants were therefore unfair to the Court below when they alleged that the Court below misunderstood the concept of abuse of Court process. If anything, it was the 1st and 2nd Appellants that misunderstood the concept of abuse of Court process. This is very clear for example from paragraph 4.27 of their brief at page 16where they submitted that the Court below ought to have declined jurisdiction to entertain suit No. ADSY/86/2018 and order for the transfer of the suit to Court 2 where suit NO. ADSY/162/2017 is pending when abuse of Court process should be visited with a dismissal of the later suit which constitutes the abuse. See also the prayers contained in the notice of preliminary objection at page 60 of the record wherein the 1st and 2nd Appellants prayed for an order dismissing or striking out suit No. ADSY/86/2018 or an order transferring suit No. ADSY/86/2018 to High Court No. 2 where suit No. ADSY/162/2017 is pending. JAMES SHEHU ABIRIYI, J.C.A

JAMES SHEHU ABIRIYI, J.C.A.(Delivering the Leading Judgment): This appeal is against the ruling delivered on 20th December, 2018 in the High Court of Adamawa State, holden at Yola. The 1st Appellant had in November, 2017 taken out a writ of summons against the 1st and 2nd Respondents in this appeal and although pleadings had been exchanged between the parties, the 1st and 2nd Respondents on 25th June, 2018 instituted another suit against the 1st Appellant, 2nd Appellant and 3rd Respondent. The action commenced in November, 2017 is Suit No. ADSY/162/2017 while the one instituted on 25th June, 2018 is suit No. ADSY/86/2018.

The Appellants objected to the filing of the seconded suit. To this end, they filed a notice of preliminary objection on 13th August, 2018 praying for an order dismissing or striking out suit No. ADSY/86/2018 for being an abuse of Court process or for an order transferring suit No. ADSY/86/2018 to Court 2 where Suit No. ADSY/162/2017 is pending. The preliminary objection was supported by an affidavit of eleven paragraphs to which was annexed a mass of documents marked exhibits A and B which included the writ of summons and statement of claim in suit No. ADSY/162/2017 and the writ of summons and statement of claim in suit No. ADSY/86/2018.

The Respondents filed a counter affidavit in opposition. A large quantity of exhibits including the writ and statement of claim in suit No. ADSY/162/2017 and the writ of summons in suit No. ADSY/86/2018 were annexed to the counter affidavit and marked exhibits A and B, C, D and E.

On 10th October, 2018, the Appellants filed a further Affidavit of eight paragraphs.

Both parties adopted their written addresses. The Court below after considering the affidavit evidence and written addresses of learned counsel dismissed the preliminary objection. The Appellants immediately proceeded to this Court via a notice of appeal dated 21st December, 2018 but filed on 27th December, 2018. The notice of appeal contains one ground of appeal from which the Appellants presented the following lone issue for determination:
Whether or not the trial Judge was right not to uphold the Appellants’ Preliminary Objection challenging the competence of the 1st and 2nd Respondents’ action for being an abuse of Court process having regard to the Supreme Court decision in the case of R-Benkay (Nig.) Ltd Vs. Cadbury (Nig.) Plc. (2012) All FWLR (Part 631) Page 1450 – Distilled from Ground 1 of the Ground of Appeal.

The 1st and 2nd Respondents submitted the following lone issue for determination:
“Whether by virtue of suit No. ADSY/162/2017 the present suit ADSY/86/2018 constitute(sic) an abuse of Court process liable to be dismissed, struck-out or transferred by reason of the 1st and 2nd Respondents’ filing of suit No. ADSY/86/2018 as a fresh suit instead of filing a counter claim in suit No. ADSY/162/2017.”

The 3rd Respondent who wants the appeal allowed formulated the following lone issue for determination:
“Whether from the entirety of parties’ submissions, the trial Court was right in overruling the preliminary objection of the appellants? (Distilled from ground one).

The Appellants filed a reply brief to 1st and 2nd Respondents’ brief.
I will determine the appeal on the issue presented by the Appellants.

Arguing the appeal, learned counsel for the Appellants submitted that the Court below misunderstood the concept of abuse of Court process which is why it overruled the preliminary objection. According to learned counsel for the Appellants, it is clear that the cause of action in both suit No. ADSY/162/2017 and Suit No. ADSY/86/2018 arose from a contract awarded by the Federal Ministry of Agriculture and Rural Development in 2016. The Court was referred to the claims in both suits.

It was submitted that where two actions are instituted, the first asking for a relief which may have been obtained in the first, the second action is prima facie vexatious and an abuse of Court process. The Court was referred to R-Benkay (Nig.) Ltd v. Cadbury (Nig.) Plc. (2012) All FWLR (Pt. 631) 1450. The 1st and 2nd Respondents, it was argued, can counterclaim in the suit earlier filed by the 1st Appellant, that is suit No. ADSY/162/2017 and apply for the name of the 3rd Respondent to be joined as a party to the suit in order not to interfere with the administration of justice.

The court below, it was contended, did not consider exhibits A and B attached to the affidavit in support of the notice of preliminary objection and exhibits A, B, C and D annexed to the counter affidavit and this led to a miscarriage of justice warranting the setting aside of the decision of the Court below.

It was submitted that instituting suit No. ADSY/86/2018 by the 1st and 2nd Respondents, was a deliberate attempt to interfere with the administration of justice which would lead to two conflicting judgments delivered in two different Courts of Adamawa State.

It was contended that adding of the name of the 3rd Respondent in suit No ADSY/86/2018 was a manipulation of judicial process by the 1st and 2nd Respondents in order to escape the wrath of the law.

It was submitted that where a Court of law identifies that its process is abused or is being manipulated to interfere with the administration of justice, the appropriate order to make in the circumstances is an order of dismissal of the Court process that constitutes the abuse.

In argument, the learned counsel for the 1st and 2nd Respondents referred the Court to Fidelity Bank Plc. V. Mbachu (2012) All FWLR (Pt. 643) 1960 at 1975 for what constitutes an abuse of Court process and R- Benkay Nigeria Limited v. Cadbury Nigeria Plc. (supra) cited by learned counsel for the Appellants.

It was contended by learned counsel for the 1st and 2nd Respondents that a cursory look at the writ of summons and statement of claim in suit No. ADSY/162/2017 and the writ of summons and statement of claim in suit No. ADSY/86/2018 would reveal that the parties are not the same as 2nd Appellant and the 3rd Respondent are not parties to suit No. ADSY/162/2017.

The claims or subject matter in suit No. ADSY/162/2017 are not the same with the claims or subject matter in suit No. ADSY/86/2018, it was submitted.

It was submitted that the claims in suit No. ADSY/86/2018 are by no means frivolous but claims for money to which the 1st and 2nd Respondents are entitled. That the 1st and 2nd Respondents’ action is in good faith.

It was submitted that two suits arising from the same issue without more does not suffice to render an action an abuse. But it will be so qualified if there are the same parties and the same subject matter. Learned counsel for the 1st and 2nd Respondents pointed out that the Appellants have suggested the joining 3rd Respondent in a proposed counterclaim but said nothing about the 2nd Appellant. These, it was submitted, show that the parties are not the same.

It was submitted that a counterclaim suggested by the Appellants is a separate action and that a person has a discretion to file either a counterclaim or another suit and the opponent cannot pick and choose the form for the person. The Court was again referred to R-Benkay Nig. Ltd v. Cadbury Nig. Plc. (supra) at page 1472. The 1st and 2nd Respondents having chosen to file a separate suit, it cannot be said to amount to an abuse of Court process.

Learned counsel for the 3rd Respondent submitted that the 3rd Respondent as Appellants is of the view that suit No. ADSY/86/2018 is frivolous and designed to annoy the Appellants.

The Appellants’ reply brief does not deal with any new point arising from the 1st and 2nd Respondent’s brief as required by Order 19 Rule 5(1) of the Court of Appeal Rules 2016. I will therefore discountenance it.

Abuse of Court process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue. Where a party duplicates a Court process, the more current one which results in the duplication is regarded as an abuse of the Court process. Anabuse of Court process involves some bias, malice, some deliberateness, some desire to misuse or pervert the system. There is said to be an abuse of process of Court when a party for example institutes a multiplicity of actions on the same subject matter against the same opponent on the same issues. See African Reinsurance Corporation V. JDP Construction (Nig.) Ltd (2003) LPELR- 215(SC) Page 28, R-Benkay Nigeria Limited v. Cadbury Nigeria Ltd (2012) LPELR – 7820 (SC) Page 22 and Oyeyemi&Ors v. Owoeye (2017) LPELR – 41903(SC). The institution of two suits will not amount to an abuse of Court process where the parties in the two suits are different and the reliefs claimed are also not the same. See the Supreme Court decisions in Plateau State v. A-G Federation (2006) 3 NWLR (Pt. 967) 346 and Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205.
Where an action is an abuse of process of Court, the process is liable to dismissal. This is because abuse of Court process is not merely an irregularity that can be pardoned but constitutes a fundamental defect which will lead to dismissal of the process which is the abuse. See Igbeke v. Okadigbo&Ors (2013) LPELR – 20664 and Dingyadi& Anor v. I.N.E.C. (2011) LPELR – 950 SC. A superficial glance at the suits annexed to both the affidavit in support of the notice of preliminary objection and the counter affidavit will show that the parties are not the same. As learned counsel for the 1st and 2nd Respondents rightly pointed out, the 2nd Appellant and the 3rd Respondent are not parties to suit No. ADSY/162/2017. This is why learned counsel for the 1st and 2nd Appellants argued that the 2nd Appellant can be joined if the 1st and 2nd Respondents counterclaimed rather than institute a separate action. As learned counsel for the 1st and 2nd Respondents pointed out, even if 2nd Appellant is joined in a counterclaim, the parties would still not be the same. Learned counsel for the 1st and 2nd Appellants submitted that the 3rd Respondent was added to suit No. ADSY/86/2018 as a manipulation of judicial process by the 1st and 2nd Respondents. That cannot be correct because the 3rd Respondent’s protest to being joined on the ground that there was no cause against it had been dismissed by the Court below. The claims in the two suitsare not the same. While in the earlier suit instituted by the 1st Appellant a serious crime of forgery is alleged, in the suit filed by the 1st and 2nd Respondents, they are claiming for money to which they are allegedly entitled.
I agree entirely with learned counsel for the 1st and 2nd Respondents also that the action of the 1st and 2nd Respondent is not frivolous.
On the whole, the 1st and 2nd Appellants have failed to show any duplication of Court process or any desire by the 1st and 2nd Respondents to misuse or pervert the system. In other words, the 1st and 2nd Appellants have failed to show that the 1st and 2nd Respondents have instituted another action on the same subject matter against them.

The Court below was therefore right when it dismissed the preliminary objection of the 1st and 2nd Appellants. The 1st and 2nd Appellants were therefore unfair to the Court below when they alleged that the Court below misunderstood the concept of abuse of Court process. If anything, it was the 1st and 2nd Appellants that misunderstood the concept of abuse of Court process. This is very clear for example from paragraph 4.27 of their brief at page 16where they submitted that the Court below ought to have declined jurisdiction to entertain suit No. ADSY/86/2018 and order for the transfer of the suit to Court 2 where suit NO. ADSY/162/2017 is pending when abuse of Court process should be visited with a dismissal of the later suit which constitutes the abuse. See also the prayers contained in the notice of preliminary objection at page 60 of the record wherein the 1st and 2nd Appellants prayed for an order dismissing or striking out suit No. ADSY/86/2018 or an order transferring suit No. ADSY/86/2018 to High Court No. 2 where suit No. ADSY/162/2017 is pending.

It is clear from all I have stated above that the only issue for determination should be resolved against the Appellants and in favour of the 1st and 2nd Respondents. It is according hereby resolved against the Appellants and in favour of the 1st and 2nd Respondents; and the appeal dismissed.
1st and 2nd Respondents are awarded N100,000 costs which shall be paid by the Appellants.

CHIDI NWAOMA UWA, J.C.A.: I agree with the leading judgment of learned brother, JAMES SHEHU ABIRIYI, JCA that the appeal be dismissed.

I also dismiss it and abide by the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

Abubakar Ali Esq.For Appellant(s)

M. P. Atsev Esq. with him, S. G. Seuduktere Esq. for the 1st and 2nd Respondents.

S. N. Augustine Esq. for the 3rd Respondent.For Respondent(s)