Zumax Nigeria Limited V. Bliss International Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment)

By Motion on Notice dated 7 December, 2009 flied on 7/12/09, the Appellant/Applicant prays for the following orders:

“1. An Order granting the Appellant/Applicant leave to raise and argue for the first time, before this Honourable Court, a challenge of the JURISDICTION of both the Federal High Court to entertain Suit No. FHC/L/CP/951/05 – Bliss International Limited v. Zumax (Nig.) Limited, on the ground of ABUSE OF JUDICIAL PROCESS; having regard to the pendency of Suit No. FHC/L/CS/1273/2002 – Bliss International Limited v. Zumax (Nig.) Limited and others, and Appeal No. CA/L/361/2004 arising therefrom.

2. An order striking out Suit No. FHC/L/CP/951/05 – Bliss International Limited v. Zumax (Nig.) Limited, for being an Abuse of Judicial Process”.

The Grounds supporting the application reads as follows:

“1. The Respondent (Bliss International Limited) filed Suit No. FHC/L/CS/1273/2002 – against the Appellant (Zumax (Nig.) Limited) and others, at the Federal High Court, Lagos, on 30th December, 2002, seeking to protect the present Appellant from an alleged mismanagement by its Directors and/or to protect the Appellant from going into liquidation based on the alleged mismanagement.

2. The 2nd – 6th Respondents in the above suit raised a Preliminary Objection challenging the competence of the suit and same was upheld and the suit struck out by the learned Trial Judge.
3. Dissatisfied with the Ruling striking out the suit which it sought to protect and/or save the present Appellant from going into liquidation based on mismanagement, the present Respondent filed a Notice of Appeal to the Court of Appeal, Lagos Division, in Appeal No.CA/L/361/2004 praying that the above Ruling be set aside, and its suit aimed at protecting the present Appellant be restored for trial.
4. Briefs of Argument have been duly exchanged and the hearing of the Substantive Appeal fixed for 28th January, 2010.
5. Inspite of the pendency of the above suit and/or appeal, the present Respondent filed a fresh action against the same Appellant by way of a winding Up Petition in Suit No. FHC/L/CS/951/05, seeking to Wind Up the Appellant on grounds of mismanagement and after a Preliminary Objection by the Appellant challenging the competence of the Winding Up Petition was overruled, the Appellant filed the present appeal which is now fixed for hearing on 9th December, 2009.
6. The present Respondent consequently has two actions pending against the present Appellant, to wit; the first action seeking to protect the Appellant from going into Liquidation, and this subsequent action, the subject of the present Appeal, seeking to Liquidate or put an end to the Appellant’s existence by way of a Court Order Winding Up the Appellant”.

In support of the application is an 11 paragraph affidavit deposed to by Uche Anozie with exhibits ‘A to D’.

The learned counsel for the Appellant/Applicant Mr. Chike Onyemenam on 9/2/10 argued the application seeking leave of the court to raise and argue for the first time Issue of Jurisdiction on ground of abuse of process. He submitted that the Issue of Jurisdiction can be raised at any stage. He cited the cases of Owners of MV gongola Hobe v. Niger Brass Shipping Line Ltd. (2007) All F.W.L.R. (pt.388) pg.l005 at 1018 paragraph 9; Ladoja v. I.N.E.C. (2007) All F.W.L.R. (pt.377) pg.934 pg. 991-992 paragraphs A to H.

It is his submission that it is an abuse of process to have two cases pending in the Federal High Court, one to preserve and the other to Wind Up. He referred to S.310 to S.312 of Company and Allied Matters Act and several cases including Brawal Shipping (Nig.) Ltd. v. Aphrodite Ent. Nig. Ltd. (2005) All F.W.L.R. (pt.251) pg.285.

Learned counsel referring to the counter affidavit of the Respondent submitted that the date, time and place of information were not stated in the counter affidavit contravening the provision in S.89 of the Evidence Act.He cited Edu. v. Cawrrd (2001) F.W.L.R. (pt.55) pg.433. He contends that if the court strikes out the paragraphs in the counter affidavit it means that the paragraphs in their own affidavit are deemed admitted. He applied to withdraw Relief 2 on the Motion paper.

The learned senior counsel Mrs. Williams contends that the application is incompetent and an abuse of the process of court. It is her argument that the application is misconceived as the grounds filed in the Notice of Appeal will not support the application sought. She referred and relied on Order 6 Rule 2(3) and 4 of the Court of Appeal Rules in support of his contention that there is no fact before the court to support the prayer sought.

Learned senior counsel contended that there is nothing in the Record of Appeal to support the point being made by the Appellant counsel that there is abuse of process of court. She stated that the parties and issues in the current suit are different from the earlier suit. She cited Saraki v. Kotoye (1992) 9 N.W.L.R. (pt.264) pg.156 at pg.188. The learned senior counsel referred the court to S.84 of the Evidence Act where the court is entitled to use defective affidavit. She referred to Aguda on Evidence Law & Practice Relating to Evidence Act 2nd Edition 2004, and urged: the court to refuse the application.

In reply on point of law Mr. Onyemenam submitted that the Issue of Jurisdiction can be raised at any time founded on record and facts. He referred to Order 6 Rule 5 of the Rules of Court.

I have carefully considered the averments in the affidavit, the counter affidavit and the submissions of the learned counsels. The learned counsel for the Appellant/Applicant contended that paragraph 4(a) to (n) of the counter affidavit contravenes the provision of S.89 of the Evidence Act.

By virtue of S.89 of the Evidence Act, where the facts deposed to in an affidavit by a person is derived from information received from another person, the name of his informant must be stated and reasonable particulars given in respect of his information and the time, place and circumstances of the information. In effect the deponent must disclose the source of his information and knowledge of the averment when he has no personal knowledge of the facts. See Dapianlong v. Dariye (2007) 8 N.W.L.R (pg.1036) 332 SC., Maja v. Samoris (2002) All F.W.L.R. (pt.98) 818 SC. However, under S.84 of the Evidence Act, the court has the discretion to permit an affidavit defective in form to be considered if the court is satisfied that the affidavit was sworn before a person duly authorized. In the instant case, the deponent of the counter affidavit in paragraph 4 stated the name of the informant. The counter affidavit from the endorsement was sworn to at the Court of Appeal Registry on 28 January, 2010 before a Commissioner of Oath, Mrs. R. D. Thompson as signed. The endorsement and signature has not been challenged. Looking at the counter affidavit ex-facie, I am not in doubt, it was deposed to before an authorized Commissioner of Oath. The failure to state the date, place and time of the information under paragraph 4 is not substantial for this court to strike out the paragraphs as urged by the Appellants’ counsel. S.84 of the Evidence Act applies in this circumstance.