African International Bank Limited V. United Bank For Africa PLC (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Lead Ruling)

The Appellant lodged an appeal against the decision of the Kaduna State High Court delivered on the 4th February 2004 in Suit No.KDH/KAD/597/2002 striking out the said suit for being an abuse of process of the court. The court on 4/2/04 stated thus:

“I therefore hereby uphold the objection of learned Counsel to the defendant in urging this Court to strike out this suit and to declare same as an abuse of Court processes. The matter is hereby struck out. As there is nothing before this Court to show that the matter at Port-Harcourt High Court has been withdrawn or any order set aside.”

This appeal is still pending while the Appellant filed this application asking for leave to adduce additional evidence which he stated was discovered after the decision of the lower Court. The Applicant prayed for the following:

1. Leave of this honourable Court to adduce additional/further and new evidence to wit by admitting the ruling of Hon. Justice P. N. C. Agumagu of Port Harcourt High Court of Justice in suit No. PHC/323/2001 delivered on 14th May, 2003 between A. Micheletti Ltd vs. France Bruce Ltd & 9 others in place of or together with the statement of claim of the same suit No.PHC/323/2001 which already admitted in evidence in suit No.KDH/KAD/597/2002 presided over by Hon. Justice Othman Abdulkadir of the Kaduna High Court and constituting part of the record of proceedings and contained at page 29 of the Record of proceedings of this Appeal in proof of the issue of Abuse of Court process being basis of this Appeal.
2. Leave of this honourable Court to adduce additional/further evidence indicating that A. Michelleti Plc is under receivership to wit by admitting deed of appointment of receiver/manager dated 9th January, 2003 registered with corporate affairs commission.
3. Leave of this honourable Court to adducing additional/further evidence to wit, by admitting Certified True Copy of search report by Corporate Affairs Commission indicating that the Receiver/Manager appointed has not been discharged.
4. Incorporating the Additional/Further and new evidence as in Paragraph’s 1, 2 and 3 above, into the record of the Court so that it forms part of the earlier record of the suit No.KDH/KAD/597/2002 presided over by Hon. Justice Othman Abdulkadir leading to this Appeal.
5. Leave to Amend the Appellants Brief of Argument in this Appeal dated 26th August, 2005 to incorporate the new and additional evidence admitted by this Honourable Court.
6. And for such further order and orders as this Honourable Court may deem fit to make in this circumstances of this Appeal.

TAKE FURTHER NOTICE THAT the grounds of this Application are as follows:

i. There is a subsisting Judgment of the Kaduna High Court of Justice presided over by Hon. Justice Othman Abdulkadir between the Appellant and Respondent in Suit No. KDH/KAD/597/2002 leading to this Appeal, the Appeal has been slated for hearing on 9th April, 2007 for adoption of parties respective Briefs of Argument.

ii. The Respondent misdirected the Court when he deliberately exhibited a Writ of Summons, instead of telling the Court that the Respondent was under receivership in proof of principle of abuse of Court process, the ground upon which the Respondent succeeded in the Court below.

iii. The issue in this Appeal is whether the principle of Abuse of Court process will operate to decide this Suit leading to this Appeal on the face of the proceedings in Suit No. PHC/323/2001.

iv. The abstract of the proceeding of the Court in Suit No. PHC/323/2001 will enable this Court to wholly determine the real question in controversy in this Appeal once and for all.

v. The record of proceedings would, if admitted have an important and crucial effect on the whole case. It has also been newly received that A. Michelleti has been in distress and under receivership.

vi. That a search report at Corporate Affairs Commission shows that Receiver/Manager appointed has not been discharged, therefore the suit in competent.

In arguing this application, learned Counsel for the Applicant, Hassan Abdrulrahman Esq; firstly submitted that this Court being a Court of justice will not allow a litigant to escape with a judgment on grounds of technicality only. He explained that the judgment of the Lower Court which has given rise to this appeal clearly made reference to Suit No.PHC/323/2002.

He stated that the reason for bringing this fresh piece of evidence is the need to be very careful to ensure that all the avenues available for prosecuting the case are exploited to the fullest. He referred to Exhibits B, C, and D attached to the affidavit in support of the Motion and submitted that any new evidence that has the ability to show that an earlier judgment was decided on an invalid premise is relevant, particularly, where it is clear that the Lower Court would have decided otherwise had it been armed with the new evidence at the trial.

He referenced the case of Justina Nwaosu vs. Honourable Emeka Abuma & 2 Ors (2013) 9 S.C.N.J. 1; per Ngwuta, J.S.C; sections 393(4) 417 of the Companies and Allied Matters Act, and listed the circumstances as depicted by Ngwuta, J.S.C., for granting this type of application, as; (1) where the additional evidence could not be obtained for use during the proceedings at the trial court; (2) if the document is admitted, it would have an important and crucial effect on the whole appeal; (3) the documents are such that are apparently credible; (a) the document would have influenced the judgments of the Lower Court in favour of the applicant and (5) the document is weighty and material.