ZENITH BANK v. JOHNSON A. AKINNIYI (2015)

ZENITH BANK v. JOHNSON A. AKINNIYI

(2015)LCN/7868(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of May, 2015

CA/AK/17/2014

RATIO

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF

In our adversary system of administration of justice, the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove. See: Daodu v. N.N.P.C (1998) 2 NWLR (Pt.538) 355, Itauma v. Akpe-Ime (2000) 7 SC (Pt.II) 24, Braimah v. Abasi (1998) 13 NWLR (Pt.581) 167 and Kala v. Potiskum (1998) 3 NWLR (Pt.540). per. JAMES SHEHU ABIRIYI, J.C.A.

PRACTICE AND PROCEDURE: WHETHER IT IS AN ABUSE OF THE COURT’S PROCESS TO COMMENCE TWO CONCURRENT ACTIONS IN THE SAME HIGH COURT ASKING FOR THE SAME RELIEF

This court in Kabo Air Ltd v. INCO Bev. Ltd (2003) 6 NWLR (Pt.816) 323 held that to commence two concurrent actions in the same High Court asking for the same relief is an abuse of the court’s process because it is oppressive and vexatious. per. JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: SECONDARY EVIDENCE; WHETHER IT IS ONLY A CERTIFIED TRUE COPY OF A SECONDARY EVIDENCE OF A PUBLIC DOCUMENT THAT IS ADMISSIBLE

JUSTICES

SONTOYE DENTON-WEST Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

ZENITH BANK – Appellant(s)

AND

JOHNSON A. AKINNIYI – Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Ondo State holden at Akure delivered on 6th October 2013.

At the lower Court, the Appellant who is the defendant applied for an order dismissing suit No: AK/105/2013 before that Court on the ground that it constitutes abuse of Court process because the subject-matter and the parties are the same with the subject-matter of suit No:AK/350/20/2 pending in the same Court.

Paragraphs 4 a-e of the affidavit in support of the motion on notice reproduced immediately hereunder read as follows:

a. Apart from this present suit, the Claimant had earlier instituted suit No.AK/350/2012 against the Defendant.

b. The said suit No.AK/350/2012 is still pending at the High Court of Justice Akure.

c. The subject matter and parties in the said suit No.AK/350/2012 and that of this suit are the same.

d. The issues to be determined in both suits are the same.

e. Copies of the enrolled order and the Writ of Summons in the said suit No.AK/350/2012 are herewith exhibited and marked A and B respectively.

Paragraphs 9-12 of the Counter affidavit reproduced immediately hereunder read as follows:

– That it was at the Registry of this Honorable Court that new Suit No.AK/105/2013 was given to the claimant/respondent instead of the suit No.AK/350/2012 contained on the Enrolment of Order on the ground that AK/350/2012 was a motion number.

– That the above stated fact in paragraph 9 predicated the alteration of the Suit No.AK/350/2012 to AK/105/2013 on the claimant processes served on the defendant/applicant, which is pending before this Honourable Court. The writ of summons dated 17th June, 2013 and filed same day is hereby attached as Exhibit 3.

– That the said order of court was served on the defendant alongside with other court processes by the bailiff of the Lagos State High Court. The affidavit of service is hereby attached as Exhibit 4.

– That Idowu Isaac Bewaji counsel to the claimant/respondent informed me in the chambers on 29th October, 2013 at 4pm and I verily believe him that:-

a. There is no other suit instituted by the claimant/respondent in respect of the action pending before this Honourable Court or any other court.

b. It was at the registry of this Honourable Court that Suit No.AK/350/2012 was changed to Suit No AK/105/2013 upon filing her processes.

c. The changing of the suit No.AK/350/2012 to Suit No AK/105/2013 is not the doing of the claimant/respondent but the registry of this Honourable Court.

The counter affidavit elicited a further and better affidavit from the Appellants.

After considering the affidavit evidence of both parties and addresses of learned counsel for the parties, the lower Court, in a considered ruling, dismissed the application on the ground that suit No:AK/105/2013 was not an abuse of court process.

Dissatisfied with the ruling, the Appellant filed a notice of appeal against the ruling on 20th December 2013 containing a ground of appeal from which he presented the following issue for determination:

Whether the learned trial judge was right in holding that Suit No:AK/105/2013 does not constitute an abuse of court process having held that the Respondent filed two separate suits No.AK/350/2012 and AK/105/2013 on the same subject matter, issues and between the same parties.

On his own part, the Respondent presented two issues for determination. The two issues reproduced immediately hereunder read as follows:

1. Whether the trial judge was right to have held that Suit No. AK/350/2012 and AK/105/2013 did not constitute abuse of court since the first writ of summons was not signed by the registrar of the trial court or appropriate officer, not dated nor served on the defendant/appellant.

2. Whether an unsigned and unissued writ of summons by the registrar of the court can be regarded as a valid suit to constitute an abuse against a subsequent valid suit filed in court.

The Supreme Court and this Court has consistently condemned the proliferation of issues. The practice is that issues for determination should not outnumber grounds of appeal. See: Mozie v. Mbamalu (2006) NWLR (Pt.1003) 466, Nwankwo & Ors v. Yar’Adua & Ors (2010) 12 NWLR (Pt.1209) 518, G.K.F. Investment Nig. Ltd v. Nigeria Telecommunications PLC (2009) 15 NWLR (Pt.1167) 344, Okonobor v. D. Edegbe & Sons Transport Company Limited & Anor (2010) 17 NWLR (Pt.1221) 181 and Okwuagbala v. Ikwueme (2010) 19 NWLR (Pt.1226) 54. In view of the fact that the Respondent formulated two issues from the ground of appeal I will determine the appeal only on the appellants issue for determination.

Arguing the appeal, learned counsel for the Appellant submitted that it is the filing and existence of two separate suits and not the validity that constitutes abuse but the filing and initiation of such suit. It was submitted that the lower Court cannot pronounce on the validity or otherwise of Suit No: AK/350/2012 which was not the issue before the court. The processes in suit No: AK/350/2012, it was submitted were only exhibited with the application before the court for the purpose of showing the existence and not the validity of a previous and pending suit on the same subject-matter and issues between the same parties.

It was submitted that what constitutes abuse of court process depends on the circumstances of each case. We were referred to Ogboru v. Uduaghan (2012) ALL FWLR (Pt.610) 1206 at 1232, Atuyeye v. Ashamu (2009) ALL FWLR (Pt.455) 1770. Dingyadi v. I.N.E.C (2010) ALL FWLR (Pt.550) 1204 and R-Benkay (Nig) Ltd v. Cadbury (Nig) PLC (2012) ALL FWLR (Pt.631) 1450 at 1466-1467 which deal with the circumstances which give rise to abuse of court process.

It was submitted finally that in view of the finding and holding by the lower Court that the Respondent filed two separate and distinct suits on the same subject-matter and issues between the same parties, the suit No.AK/105/2013 constitutes an abuse of court process and ought to have been dismissed.

Arguing the appeal, the learned counsel for the Respondent contended that for an action to be deemed to be in existence, the other party must have been served with the originating process (Writ of Summons) and all accompanying documents relating thereto. Learned counsel cited the case of Ministry of Works v. Tomas (Nig) Ltd (2002) 2 NWLR (Pt.752) 785 where abuse of process has been defined.

There was no indication, it was argued that the unissued Writ of Summons with suit No.AK/350/2012 was intended to pervert the system of administration of justice, intimidate or oppress the Appellant since the Appellant was not served with the Writ of Summons. There was no indication, it was further argued that the Respondent further filed other processes to follow up the Writ of Summons with suit No. AK/350/2012 which was abandoned in the Court Registry.

Are there two separate suits by the Respondent against Appellant on the same subject matter before the lower Court with the later suit constituting an abuse of court process?

The learned counsel for the appellant submitted that the lower Court held that the Respondent filed two separate suits AK/350/2012 and AK/105/2013 on the same subject matter. With due respect to the learned counsel for the Appellant, that was not a complete disclosure for this is what the lower Court at page 57 of the record of appeal stated:

There is therefore, in law, no suit known as AK/350/2012 which is in existence in this court. Therefore, in law, there is no concurrent suit in existence in this court which exists along with suit no.AK/105/2013. There is therefore no abuse of the process of this court, in fact.

It was the view of the lower Court that there was only one suit because one of the writs of summons was not signed by the registrar of court.

In my view there is only one suit but for different reasons.

In an attempt to show that there are two separate suits on the same subject-matter between the same parties, the Appellant annexed Exhibit B to the affidavit in support of the motion asking the lower Court to dismiss one of the suits on the ground that it constitutes an abuse of court process. At page 50 of the record of appeal, the lower Court stated that Exhibit B is a certified true copy. With due respect to the lower Court, that is far from the truth. The document is stamped “Certified True Copy” without more. By virtue of Section 104 of the Evidence Act 2011 there must be the date on which it was certified. It must contain the name of the officer who certified it and his title. There is no stamp of court on the said document. Anybody could stamp the three words which the lower Court claimed to be a certification on the said Exhibit B.

It is the law that the only secondary evidence of a public document admissible is a certified true copy of the document. It is immaterial whether the secondary evidence is for use in an interlocutory application or a substantive suit. It remains inadmissible in both situations unless it is certified. See: Fawehinmi v. I.G.P. (2000) FWLR (Pt.12) 2015 and Delta State House of Assembly Ors v. PDP & 3 ORS (2014) LPELR 22808. As the said Exhibit B is not certified, the lower Court ought not to have even looked at it. Even if it was certified and the lower Court looked at it, there is no way it could have been held to be evidence of a pending suit. The said Exhibit B does not have a suit number. Exhibit A also annexed to the affidavit in support of the motion on notice is not certified. Even if it was certified and the court had taken a look at it, the said Exhibit A is an enrolled order of court pursuant to the motion ex parte moved and granted by the lower. It is not evidence of the existence of a suit with No:AK/350/2012.

The lower Court in its ruling at page 54 dismissed the possibility of AK/350/2012 being a number for a motion. This is what the court stated:

This court also takes judicial notice of the fact that suit no.AK/350/2012 is not a number for motions. It is a suit number for substantive suits. A motion number issued by the registry of this court usually includes the ‘M’. For example, if the suit number were to be a number for a motion, it would have read AK/350M/2012. The contention of the claimant’s counsel in this regard is without factual basis.

With due respect to the lower Court, no court can take judicial notice of the number of a motion or any matter before it. The number of a motion is the number given to it by the registry. There is no rule of court on which the lower Court relied to come to the conclusion that the number of the motion ex parte would include an “M”. There was therefore no basis for the conclusion of the lower Court that AK/350/2012 was not a number for the motion ex parte upon which the enrolled order Exhibit A was based.

The Appellant did not attach any writ of summons and/or statement of claim bearing suit No. AK/350/2012 different from the present suit which he says is an abuse of court process. On the available affidavit evidence, the Appellant failed to show that there were two separate suits on the same subject-matter between the same parties to constitute an abuse of court process.

The lone issue for determination is resolved in favour of the Respondent.

The interlocutory appeal against the ruling of the lower Court is therefore dismissed.

SOTONYE DENTON WEST, J.C.A.: I agree

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that there was no multiplicity of suits cum abuse of court process proved by the Defendant/Appellant herein against the Plaintiff/Respondent’s suit at the trial court.

I adopt the reasoning and conclusion in the Leading Judgment and also dismiss the appeal herein.

Appearances

T. Adedipe Esq. with O. Adeniyan & O. TolaniFor Appellant

AND

I.I. Bewaji with J. SebiotimoFor Respondent