ZENITH BANK v. NATIONAL TRUCKS MANUFACTURERS LTD & ANOR
(2020)LCN/15834(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Wednesday, March 25, 2020
CA/K/480/2014
Before Our Lordships:
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
ZENITH BANK PLC APPELANT(S)
And
1. NATIONAL TRUCKS MANUFACTURERS LTD 2. WINDWARD INTERNATIONAL LTD RESPONDENT(S)
RATIO:
WHETHER AN APPEAL AGAINST TWO SEPARATE RULINGS CAN CONSTITUTE AN ABUSE OF COURT PROCESS
The issue here is whether the appeals against the two separate rulings constitute an abuse of process. In the case of Saraki v. Kotoye (1992) 9 NWLR Part 264 p. 156 at p. 188, the Supreme Court went at length to consider the concept of abuse of process and inter-alia, made the following definitive statement on the concept-
“But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West Africa In. (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se” OBIETONBARA O. DANIEL-KALIO, J.C.A.
FEATURE OF ABUSE OF COURT PROCESS
One of the features of abuse of Court process is where two or more processes are used in respect of the exercise of the same right, or where a relief in the latter Court may have been included in the first, the second process is vexations and an abuse of Court process. See Bukoye v. Adeyemo (2017) 1 NWLR Part 1546 Page 173 at 191 – 192 Para H – H per Sanusi JSC; Saraki v. Kotoye (1992) 9 NWLR Part 264 Page 156 at 189 Para E – B per Karibi-Whyte JSC. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): The appeal here is against the ruling of the Kano State High Court delivered on July 25, 2011. The 1st Respondent here as the Plaintiff at the lower Court, took out a writ of summons in which it claimed against the Defendants, i.e. the Appellant and the 2nd Respondent in this appeal, jointly and severally, the sum of N117,880,000.00 (One Hundred and Seventeen Million, Eight Hundred thousand Naira) being the outstanding balance of the price of motorcycles sold to the 1st Defendant (2nd Respondent here) by the Plaintiff (1st Respondent here) upon the guarantee and assurances of the 2nd Defendant (the Appellant here) that the postdated cheques issued by the 1st Defendant for payment for the goods will be honored on presentation but which cheques the 2nd Defendant dishonored on presentation. On 30/6/11, the lower Court gave judgment against the Appellant in default of pleadings. By a motion on notice filed on 30/5/2011 (p.175 of the record), the Appellant prayed the lower Court for an order setting aside the judgment of the lower Court against the Appellant in default of pleadings; an order extending the time for the Appellant to file its Statement of Defence out of time and an order deeming the statement of defense as properly filed and served. In a ruling of the lower Court delivered by Abdullahi M. Bayero J., the Court dismissed the motion on notice. Aggrieved, the Appellant filed a Notice of Appeal on 27/9/11 in which it challenged the judgment on six grounds.
Five issues for determination in the appeal were distilled from the six grounds of appeal as can be seen from the Appellant’s amended Brief of Argument filed on 24/2/16 and deemed filed and served on 3/5/16 The issues are-
1. Whether the learned trial judge was right to have refused to set aside the default judgment and to allow the Appellant to defend the suit on the merit.
2. Whether in the circumstances of this case, the learned trial judge was right when the Court discountenanced paragraph 5 of the supporting affidavit.
3. Whether the learned trial judge was right when he held that the Appellant has no Defence against the 1st Respondent’s claim.
4. Whether the learned trial judge was right when he entered default judgment for the 1st Respondent.
5. Whether the 1st Respondent has disclosed any cause of action against the Appellant to warrant judgment to be given in her favor.
The 2nd Respondent did not file any Brief of Argument, but the 1st Respondent filed a Brief of Argument and a Notice of Preliminary Objection. In its Brief of Argument, the 1st Respondent distilled a single issue for determination in this appeal viz-
“Whether the learned trial judge was right when he refused to set aside his judgment”
But first, it is necessary to consider the 1st Respondent’s preliminary objection since a successful preliminary objection is capable of terminating an appeal.
In the Notice of Preliminary Objection contained in the 1st Respondent’s amended Brief of Argument, the 1st Respondent sought to have the appeal struck out or dismissed for being incompetent and an abuse of process. The ground of the preliminary objection in essence is that the present appeal was filed when Appeal No. CA/K/247/2011 was pending and that both appeals have the same reliefs, the relief in the amended Notice of Appeal in this appeal which amended ‘ setting aside the decision of the trial Court’ to read ‘ to allow the appeal’ notwithstanding. Arguing the preliminary objection in the said 1st Respondent’s amended Brief of Argument prepared by him, Edoja John Onema, Esq. submitted that the Appellant cannot maintain two appeals even if on different grounds if the reliefs in both appeals are the same. To do so he submitted, will amount to an abuse of process, gambling and a trick in litigation. He cited Ashley Agwasim & Anor v. David Ojichie & Anor (2004) 9-12 SCM Part 2. p. 1 at p. 8-11. He submitted that the Appellant’s additional prayer that this Court should exercise its power under Section 16 of the Court of Appeal Act, does not detract from the fact that the purpose of this appeal is to set aside the decision of the lower Court. He cited the case of ACB v. Nwaigwe (2000) 1 NWLR p. 201 at p. 208. While conceding that Appeal No. CA/247/2011 was struck out, it was submitted that the Appellant challenged the order striking out the appeal via Appeal No. SC. 889/2014 presently pending at the Supreme Court. The implication of the pendency of the appeal at the Supreme Court, learned Counsel argued, is that that the Appellant is still pursing both appeals. He therefore urged this Court to dismiss or strike out this appeal.
Segun Olabode, Esq. arguing in response to the preliminary objection, submitted in the Appellant’s Reply Brief of Argument settled by him, that there were series of rulings delivered by the lower Court. He contended that the lower Court delivered a ruling on 30/6/11 in which it dismissed the Appellant’s two motions dated 4/3/11 and 17/6/11 and also entered a default judgment against the Appellant. Dissatisfied with that ruling, the Appellant he submitted, filed a Notice of Appeal challenging it. He referred to p.1-3 of the Supplementary record which shows the Notice of Appeal in respect of that ruling. That appeal, he contended, is Appeal No. CA/K/247/2011. Same was struck out by this Court on 12/11/2014 as a result of which the Appellant appealed to the Supreme Court in Appeal No. SC 889/2014. The Appellant’s learned Counsel submitted that the lower Court delivered another ruling on 25/7/11 in respect of the Appellant’s motion on notice dated 30/6/11. Also dissatisfied with that ruling, the Appellant, he submitted, filed a Notice of Appeal dated 27/9/11, challenging the ruling. Learned Counsel referred to pages 209-211 of the Record of Appeal which shows the Notice of Appeal with respect to the ruling of 25/7/11. It is the appeal with regard to the ruling of 25/7/11 that the present appeal is concerned, he submitted. Learned Counsel contended that the ruling of the lower Court of 30/6/11 which led to Appeal No. CA/K/247/2011 is quite different from the ruling of the lower Court of 25/7/2011 which is the subject matter of the present appeal. Learned Counsel argued that the decision of the lower Court of 30/6/11 and the one of 25/7/11 are quite different and distinct even though they were both delivered by the same judge in respect of the same suit. He argued that a party dissatisfied with a decision (within the meaning of Section 318 (1) of the Constitution of the Federal Republic of Nigeria, 1999) of a Court, has a right of appeal. He cited Pelfaco Ltd v. West African Oil Field Services Ltd(1997) 10 NWLR Part 524 p.222 at p.235; Trans Nab Ltd v. Joseph (1995) 5 NWLR Part 504; Ogunmola v. Kida (2002) FWLR Part 86 p. 559 at 569. Learned Counsel submitted that two different appeals in respect of two separate decisions of a trial Court given at different dates in the course of the same suit cannot amount to an abuse of process. He cited Okonkwo v. UBA (2003) FWLR Part 140 p. 1736 at 1747; Opekun v. Sadiq (2003) FWLR Part 150 p.1654 at p.1662; Henshaw v. Ekpeluma (2010) ALL FWLR Part 540 p. 1339 at p.1361. It was contended that the argument of the 1st Respondent’s learned Counsel that the reliefs in the Notice of Appeal dated 18/7/11 and that in the Notice of Appeal dated 27/9/11 now Amended Notice of Appeal dated 10/2/16 are the same, is misleading as they are not. He further submitted that the case of Agwasim v. Ojichie (supra) cited by the 1st Respondent’s learned Counsel is distinguishable from this case, just as the case of ACB v. Nwaigwe also cited by the 1st Respondent’s learned Counsel is distinguishable.
Now the problem here is not whether the Appellant has a right to appeal as the Appellant’s learned counsel has urged this Court. Of course the Appellant has a right to appeal. The issue here is whether the appeals against the two separate rulings constitute an abuse of process. In the case of Saraki v. Kotoye (1992) 9 NWLR Part 264 p. 156 at p. 188, the Supreme Court went at length to consider the concept of abuse of process and inter-alia, made the following definitive statement on the concept-
“But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3 SC 21; Oyegbola v. Esso West Africa In. (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se”
Clearly therefore as I earlier noted, it is not the exercise of the right to appeal that is in question here but whether the Appellant’s appeals constitute an abuse of process in that the appeals amount to instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues.
I have looked carefully at the Notice of Appeal in Appeal No. CA/247/2011 in respect of the ruling of the lower Court of 30/6/2011 which is contained at p. 1-3 of the Supplementary Record of Appeal and compared and contrasted it with the Notice of Appeal in Appeal No. CA/K/480/14 which is against the Ruling of the lower Court of 25/7/11 contained at p.209-211 of the main record of appeal. Looking at the two Notices of Appeal, they interlope and crisscross each other with regard to the subject matter and the issues. Both inter-alia, deal with the decision of the lower Court in giving a default judgment in favor of the 1st Respondent. This is clear from ground four of the Notice of Appeal in Appeal No. CA/247/2011 which reads: “The learned trial judge erred in law when it entered judgment in default of pleadings in favor of the 1st Respondent”. It is also clear from ground one in the Notice of Appeal in the instant appeal which reads: “The learned trial judge erred in law when he dismissed the Appellant’s motion dated 30th June, 2011 and refused to set aside its judgment in default of pleadings”. The grounds in both Notices of Appeal referred to dwell on the subject matter of judgment in default of pleadings. There is therefore a multiplicity of actions on the same subject matter, against the same opponents on the same issues. The Appellant should have discontinued one of the appeals instead of carrying on with both like a gambler hedging his bets. This appeal amounts to an improper use of the judicial process by the Appellant to interfere with the due administration of justice since the Appellant has a pending appeal before the Supreme Court from Appeal No. CA/K/247/2011 on the same subject matter. The Appellant is well advised to pursue that appeal. Consequently, the appeal here is struck out. There is no order as to costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother OBIETONBARA O. DANIEL-KALIO JCA
It is clear, as my learned brother has held, that where there is pending in the Supreme Court, an appeal on the same subject in the Court of Appeal, the appeal before this latter Court will amount to an abuse of Court process. One of the features of abuse of Court process is where two or more processes are used in respect of the exercise of the same right, or where a relief in the latter Court may have been included in the first, the second process is vexations and an abuse of Court process. See Bukoye v. Adeyemo (2017) 1 NWLR Part 1546 Page 173 at 191 – 192 Para H – H per Sanusi JSC; Saraki v. Kotoye (1992) 9 NWLR Part 264 Page 156 at 189 Para E – B per Karibi-Whyte JSC.
The grounds in both Notices of appeal refer to the same judgment in default of pleadings. The Appellant should have discontinued one of the appeals instead of continuing with them both, I hold. The appeal before this Court constitutes an abuse of Court process and is accordingly struck out.
JAMES GAMBO ABUNDAGA, J.C.A.: I read the judgment delivered by my learned brother OBIETONBARA O. DANIEL-KALIO, JCA The reasoning and conclusion reached in the said judgment is without blemish. I agree that the instant appeal constitutes abuse of Court process and is accordingly struck out.
Appearances:
SEGUN OLABODE For Appellant(s)
E. J. ONEMA with him, MRS C. S. DALU-OBELE for the 1st Respondent/ Applicant For Respondent(s)
