Shinning Star Nigeria Limited & Anor. V. A.k.s. Steel Nigeria Limited & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

I.M.M. SAULAWA, J.C.A. (Delivering the Lead Ruling)

By the instant application, filed on 15th July, 2009, the two Appellants/Applicants have jointly prayed this Court for the following orders:-

1. “AN ORDER staying and/or suspending the order/orders of the Federal High Court Lagos made on the 1st July, 2009 in Suit, No. FHC/L/CS/1 05/06 whereby the said Federal High Court without jurisdiction discharged interfered with and/or over-ruled the existing order/orders of this Court i.e, the Court of Appeal in Suit No. CA/L/783/07 made in its judgment on appeal to it on the 19th March, 2009 pending the determination of the appeal.
2. AN ORDER of interlocutory injunction restraining anyone from acting as the Receiver/Manager of the 1st Respondent except Mr. Olusegun Ajayi appointed by the Chief Registrar of the Federal High Court pursuant to and in the execution of the order/orders of this Court made in its judgment of 19th March, 2009 and further restraining the 2nd and 3rd Respondents from Acting as Directors or of the 1st Respondent thus confirming and/or affirming the orders of this Court in its judgment of 19th March, 2009 in the said Suit No.CA/L/783/07 pending the determination of the appeal.
3. AN ORDER of interlocutory injunction restraining the Chief Registrar of the Federal High Court from complying with the Orders of the trial Court of 1st July, 2009 in so far as they affect him pending the determination of the appeal.
4. AN ORDER joining the Chief Registrar of the Federal High Court to this Suit.
5. For such further or other order or orders which this Honourable Court may deem fit to make in the circumstances, a further affidavit, and 2nd and 3rd further affidavits and reply affidavit, respectively.”

The application in question was supported by a 19 paragraphed affidavit, Attached to the affidavit are the following exhibits: (i) Exhibit WK 1- the judgment of this court, dated 19th March, 2009 in Appeal No. CA/L/782/07; (ii) Exhibit WK 2 – an enrolled order of the Federal High Court, Lagos Judicial Division dated 8th July, 2009 regarding Suit No. FHC/L/CS/1059/06; and (iii) Exhibit WK 3 of the Notice of Appeal dated and filed on 14th July, 2009 against the ruling of the said Federal High Court Lagos delivered by the Hon. Justice Tijjani Abubakar, on 7th July, 2009 in Suit No. FHC/L/CS/1059/06, respectively.

On the part thereof, the Respondents had deposed to a counter affidavit of 89 paragraphs, a further counter affidavit, and a further and better counter affidavit on 9th October, 2009, 26th October, 2009, and 28th October, 2009 respectively.

On 29th October, 2009, when the application came up for hearing, the Court deemed it expedient to direct parties to file and serve their respective written addresses. On 11th January, 2010, when the application last came up for hearing, the parties accordingly adopted their respective written addresses, resulting in reserving the application for ruling. The applicants’ written address was dated 4th November, 2009, and filed the same date. The 1st to 3rd Respondents’ written address, on the other hand, was dated and filed on 10th November, 2009. The submission of the Applicants’ learned senior counsel is contained in pages 1 – 26 of the written address thereof, while the list of authorities cited and relied upon could be found at pages 27 and 28, respectively. A sole Issue has been raised in the said written address for determination, viz:

“Whether it is proper for the Court of Appeal to grant the relief reliefs sought in the motion on notice of the Applicants dated 15th July, 2009.”

It was the submission of the Applicants’ learned counsel that there are several reasons supported by law on why the application should be granted by this Court. An abuse of process of Court is alleged to be one of such reasons that would warrant Court to grant an interlocutory relief where the abuse of process of Court could disrupt, frustrate, over reach and render nugatory the determination of appeal or application pending in the higher court. Instances of multiple abuses were cited and attributed to the Respondent thus:-

4.4. It is not in dispute that there are multiple abuses of process of court by the Respondent. The first occurred.

(a)(i) When the Respondents filed a Notice of Appeal on the 26th March, 2009 against the decision of this court in the Supreme Court.

(ii) The Notice clearly shows that the appeal is against the whole decision of this court.

(iii) In fact, Ground 1 thereof includes a complaint against the decisions of this Court appointing a Receiver/Manager.

(iv) The appeal is still pending in the Supreme Court and is still to be heard and determined.

(v) Whilst the Respondents appeal is pending in the Supreme Court, the same Respondents applied Orally that the Order of this Court appointing Receiver/Manager be discharged and thus engaged.

(b) As if the above was not enough.