African Continental Bank Plc V Damian Ikechukwu Nwaigwe & 2 Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C

This is an appeal against the judgment of the Court of Appeal Holden at Jos in appeal No.CA/J/13/98 delivered on the 12th day of July, 1999 in which the court dismissed the appeal of the appellant and affirmed the judgment of the High court of Adamawa State, sitting in its appellate jurisdiction, in suit No. ADSY/28A/98 delivered on the 4th day of December, 1996.

The facts of the case include the following:-

Sometime in 1993, a company known as Road construction company of Nigerian Limited, based in Numan went into liquidation as a result of which its equipments were put up for sale. The 1st respondent, a customer of the appellant at its Yola Branch, obtained a loan of N1.5millon (N1,500,000,00) from the appellant for the purchase of the equipments of the liquidated company out of which the sum of N1 millon (N1,000,000.00) was paid over to the said company while the balance of five hundred thousand naira (N500,000.00) was allegedly shared by officers in the employ of the appellant at the material time, The 1st respondent sold some of the equipments and made a refund of about N900,000.00 (nine hundred thousand naira) of the principal sum of N1.5millon (N1,500,000,00) but later started to divert the proceeds of the sale into an account with Afribank as a result of which the 2nd and 3rd respondents contacted the police who sealed up the business premises of the 1st respondent and carted away some of the goods of the 1st respondent was also arrested and detained. Upon being released from detention he instituted an action against the appellant and two of its staff (officers) and joined the Commissioner of Police in charge of Adamawa State at the Upper Area Court NO. 2, Yola in suit No. UAC2Y/CV/F1/47/94 claiming some reliefs. However, on the 22nd July, 1994 the name of the appellant was struck out of the suit upon application by the other defendants.

On the 13th day of December, 1994, the 1st respondent took out another writ of summons against the earlier parties including the appellant which action was later consolidated and proceed to trial. The 1st respondent closed his case on 25th April, 1996 and the matter was adjourned for defence which never took place as the trial court closed the case for the defence on the date fixed for same due to the absence of counsel and party and heard address from counsel for the 1st respondent on 4th June, 1996. The matter was then adjourned to 27th June, 1996 for judgment, though appellant maintained that it was never put on notice of the proceedings from the time the trial court refused to grant an adjournment to enable appellant open its defence. A motion was later filed for leave to defend the action which was allegedly heard in chambers and refused, and the judgment was delivered on 17th July, 1996.

Following the delivery of the said judgment appellant and other defendants filed a motion before the court praying for an order setting aside the judgment which they contended was given without jurisdiction which application was refused, as a result of which appellant appealed to the High Court of Adamawa State against the judgment of the Upper Area Court while the 1st respondent cross appealed, while the appeal was pending, appellant applied for leave to apply for an order of certiorari to issue to bring before the High Court the decision of the said Upper Area Court for the purpose of being quashed, which leave was granted but the substantive application was refused by the court. After failing on its bid to quash the decision by way of certiorari, appellant then filed an application before the High Court praying for an order that it be granted leave to file additional grounds of appeal which resulted in the 1st respondent filing a preliminary objection contending that the appeal was in abuse of process in view of the application for an order of certiorari to quash the same decision, which objection was taken and upheld by the court and the appeal dismissed. Appellant was dissatisfied with that verdict and appealed to the Court of Appeal, holden at Jos, which dismissed same resulting in the instant further appeal, the issues for the determination of which have been identified by learned senior counsel on the appellant, G. OFODILE OKAFOR ESQ, SAN, in the appellant brief of argument filed on the 28th day of November, 2005 as follows:-

“1. Whether or not the appellant’s appeal to the High Court of Adamawa State sitting in its appellate jurisdiction amounts to an abuse of court process.

2. Whether or not the prerogative writ/order of certiorari is an alternative to constitutional right of appeal.
3. Whether or not the court below considered all the issues raised especially the issue of estoppel and whether the court was right in affirming the judgment of the High Court sitting on appeal”.

In arguing issue 1, learned senior counsel for the appellant submitted that appellant’s appeal before the High Court was not an abuse of process; that an abuse of process of court is when a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice, e.g. where two similar processes are issued against the same party(ies) in respect of the exercise of the same right and same subject matter – relying on Arubo V. Aiyeleru (1993) 3 NWLR (Pt.280) 126 at 142: CBN v. Ahmed (2000) 11 NWLR (Pt.724) 369 at 504; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188 – 189; Diel v. Iwuno (1996) 4 NWLR (Pt.445) 622 at 630: N.V. Scheep v. “S”. Araz (2006) 15 NWLR (Pt.691) 622 at 664: that appellant has not done anything that can be considered an abuse of the process of the court; that the parties in the appeal and the application for certiorari are not the same neither are the proceedings similar in nature; that the processes were not taken out simultaneously; that as at the time the appeal was being pursued, the proceeding on certiorari had been concluded; that even if the application for certiorari was still pending, it can exist side by side with the appeal relying on order 43 Rule 3(6) of the Gongola State High Court (Civil Procedure) Rules; page 376 of Judicial Review of Administrative Action by S.A. De-smith, 3rd edition.

It is the further submission of learned senior counsel that the appellant was exercising its constitutional right of appeal by filing the said appeal and as such it cannot be said to be abusing the process of the court by exercising that right, relying on Saraki v. Kotoye (supra) at 189, and 194: CBN v. Ahmed supra at 409-410. Learned senior counsel urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the 1st respondent, CHARLES OBISHAI ESQ, submitted that what the appellant did by pursuing the two processes amounts to an abuse of court process; that Order 43 Rule 3(6) supra applies when a party is seeking leave to apply for an order of certiorari, not after obtaining the leave; that the only option opened to the appellant upon the dismissal of its application for certiorari was to appeal against the decision, not to resort to an alternative remedy, Finally learned counsel urged the court to resolve the issue against the appellant.

Abuse of court processes has been variously defined by this court over the years and includes 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 exercise of the same right and same subject matter or where the process of the court has not been used bona fide and properly – see Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188: Okorodudu v. Okoromadu (1977) 3 S.C 21: Okafor v. A-G Anambra State (1991) 6 NWLR (Pt.200) 63 at 681: Nnana v. Nwanebe (1991) 2 NELR (Pt. 172) 181; C.O.P. v. Fasehan (1997) 9 NWLR (Pt.507) 171: Olutinrin v. Agaka (1998) 6NWLR (Pt.554) 366.

In the case of Adesokan v. Adegorolu (1991) 3 NWLR (Pt.293) 297, it was held that to institute an action during the pendency of another one claiming the same reliefs amount to an abuse of process of court. It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of the court – see the authorities earlier cited. It is not the existence or pendency of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of court – see Okafor v. A-G Anambra State supra.

There is no dispute that following the judgment of the Upper Area Court, appellant filed a motion before that court seeking to set aside that judgment on the ground that it was a default judgment which was refused by the court. Equally not disputed is the fact that appellant proceeded to file an appeal against the said judgment and that while that appeal was pending before the Adamawa State High Court, appellant filed an application seeking leave to apply for an order of certiorari to bring up to the High Court for the purpose of its being quashed the very decision of the said Upper Area Court, subject of the pending appeal; that the application for leave was granted but the subsequent application on notice for the order of certiorari was dismissed by that court resulting in the appellant turning round to pursue the appeal which was still pending, by filing an application for leave to file additional grounds of appeal. It was at the hearing of the said application that learned counsel for the 1st respondent raised an objection to the hearing of the appeal. The High Court held at page 13 of the record, inter alia, as follows:-

“Having failed [in the application for an order of certiorari], the best the appellants could have done was to appeal against the order of dismissal of their application at the court of Appeal Jos, than to now come by way of appeal.