Aero Bell Nigeria Limited & Ors V. Fidelity Union Merchant Bank Limited (2005)

LawGlobal-Hub Lead Judgment Report

CLARA-BATA OGUNBIYI, J.C.A.

The application giving rise to the ruling from which this appeal stems is pursuant to a motion on notice filed by the respondent/applicant’s counsel on the 17th May, 2000 seeking for the following prayers:-

“1. AN ORDER of this court striking out or dismissing petitioners petition herein on the ground that the claim herein is frivolous, vexatious and discloses no reasonable cause of action against the Respondent and the petition is a gross abuse of process of this Honourable court.

AND for such further or other order or orders as this Honourable court may deem fit to make in the circumstances.”

The application was brought pursuant to Order 8 Rule 2 (1), Order 24 Rules 2 , 3 and 4 of the Federal High Court (Civil Procedure) Rules, 1999 and the grounds upon which set out are as follows:-

“1. The petitioners’ herein have no locus standi to institute this action.

2. The petitioners herein made an outright sale to Fidelity Staff Trust of Petitioners’ Shares in the Respondent Bank inclusive of all attached or accrued rights, all dividends and distributions declared paid or made in respect of the shares aforesaid up to the end of Respondent’s Bank’s financial year in 1998 thereafter.
3. It is the primary duty of this Honourable Court to consider the totality of evidence as borne out by all correspondence exchanged in the transaction leading to the action herein so as to determine the position of parties.
4. The Petitioners’ claim herein against the Respondent Bank is not bona-fide.”

By the decision contained in the Ruling of the Federal High Court, Lagos, dated 24th July, 2000, delivered by the Honourable Justice E. O. Sanyaolu, the said court below dismissed Respondent/Appellant’s motion on notice and which was dated 17th May, 2000, seeking for the orders on the stipulated reasons stated and reproduced supra.

Aggrieved by the said decision aforesaid, the respondent/appellant herein filed a Notice and grounds of appeal evidenced by Treasury Receipt both shown on pages 212 – 218 of the supplementary Record of appeal. The notice of appeal is dated 31st July, 2000 and filed the same day.

In compliance to the rules of court, both sides filed and exchanged briefs of arguments. While the appellant’s brief was dated and filed on the 5th April, 2001, with the reply brief also dated and filed the 29th September, 2004, that of the respondents was dated 4th and filed on the 5th May, 2004. The respective briefs were all adopted by counsel on the 25th May, 2005, when the appeal was called up for hearing with Chief A. C. Tagbo, representing the appellant while T. E. Williams SAN with J. Okeaya – lnneh (Miss) and E.C. Nicol also (Miss) represented the respondents. On the one hand, and on behalf of the appellant its learned Counsel urged us to allow the appeal and set aside the decision of the court below. Counsel further urged for the dismissal of the respondents’ brief in that court in terms of the appellant’s application dated 17th May, 2000. On the other hand, however, the learned Senior Counsel submitted lack of merit of this appeal and urged that same be dismissed forthwith.

From the five grounds of appeal, the appellant distilled four issues for determination which are as follows:-

a) whether it was competent for the court below not to consider in its Ruling dated 24th July, 2000, the ground specified in the prayer contained in Appellant’s motion on Notice dated 17th May, 2000, as well as other Grounds of the Application aforesaid seeking the order of the court below to strike out or dismiss the petitioner’s action on the ground that the claim therein is “frivolous, vexatious and a gross abuse of process of the court.

b) Whether the court below was right by refraining from considering Appellant’s counsel’s Reply on points of law touching on lack of jurisdiction of the court below to entertain petitioners’ action in respect of “outright sale of shares (inclusive of dividends accrued thereto) by the Petitioners/Respondents to Fidelity Staff Trust” on the ground specified in the prayer contained in Appellant’s motion on Notice dated 17th May, 2000, seeking order of the court below that Petitioner’s action be struck out or dismissed, Petitioner’s claim being “frivolous, vexations and a gross abuse of process” of the court below.

c) whether the court below has an inherent jurisdiction to prevent abuse of its process by frivolous and proceeding having regard to:

i) The ground aforesaid specified in the prayer sought in Appellant’s motion on Notice dated 17th May, 2000 seeking petitioners’ action to struck out or dismissed as being “frivolous, vexations and a gross abuse of process of the court below.