Alhaji Audu Shugaba V. Union Bank Of Nigeria Plc. (1999)

LAWGLOBAL HUB Lead Judgment Report

B. WALI, J.S.C

It is pertinent to set out the sequence of events in this case leading to the filing of action in the High Court of Borno State sitting in Maiduguri. Alhaji Audu Shugaba, the plaintiff/appellant is a customer of the defendant/respondent. On October 30th, 1987, the appellant filed suit No. M/135/87 in which he prayed for the following reliefs:-

“(a) A declaration that the purported deed of legal mortgage in respect and covered by certificate of occupancy No. B0/3131 and known as International Airport Hotel Maiduguri and situate along Kano Road, Maiduguri, registered in favour of the defendant is illegal, null and void and of no effect whatsoever.

(b) An order perpetually restraining the defendant, its agents, servants or privies from auctioning, selling or in any way disposing of the property covered by Certificate of occupancy No. BO/3131 in pursuance of or under the purported deed of legal mortgage, illegally and unlawfully registered in favour of the defendant at the Lands Registry, Maiduguri.

(c) A declaration that the plaintiff is not owing the defendant the sum of N333,210.85 or any sum whatsoever.”

It appears from the bundle of papers filed in this Suit pleadings were ordered and same were filed and exchanged. The trial proceeded and evidence of the appellant in support of his case was partly taken. The appellant’s evidence was being taken when he stopped coming to court for no apparent reason. As stated in the appellant’s brief before this court: “The case was part heard until it was struck out on 11th July, 1994 for want of diligent prosecution.” In striking out the suit the court awarded, costs of N500.00 to be paid before the suit could be relisted. The Ruling of the learned Judge in which she struck out the case and made the order stated in the appellant’s brief (supra) is contained on page 32 of the record of proceedings wherein it is stated-

…. I struck out this suit for lack of diligent prosecution. In respect of the costs sought for I hold the view that costs of N500.00 is appropriate in favour of the defendant and the same to be paid before any further step is taken towards relisting the suit, the suit is struck out with N500.00 costs.”

Instead of complying with order of the court by paying the N500.00 costs to get the suit relisted, the appellant filed another Suit No. M/177/94.

The filing of fresh suit to wit, No. M/177/94 was objected to by the Respondent on ground that the costs awarded in M/135/87 had not been paid when the step in filing the fresh action was taken, The learned trial judge agreed with counsel for the defendant when she stated in the drawn up order signed by her on 25th January, 1995, that-

“That an order is made refusing the application for interlocutory injunction and a further order is also made striking out the main suit No. M/177/94 now pending before this court as same is incompetent with the applicant failing or refusing to comply with the Court’s Order as to costs. There is also a cost of N500.00 to the respondent and same to be paid before any further step is taken in this case.”

The appellant abandoned both M/135/87 and M/177/94 and filed another fresh suit on 27th January, 1995 M/29/95 in which he repeated the reliefs sought for in the previous suits. He refused to comply with order of the court in M/177/94 to pay costs awarded therein before any further step is taken in the case.

It was after the drawn up order dated 25th January, 1995 copied on page 33 of the Record that the defendant proceeded with the sale by auction, of the appellant’s property the subject of this litigation. The sale by auction was carried out by the Respondent on 4th February, 1995.

Aggrieved with the Respondent’s action of sale by auction of the property the appellant yet commenced another action to wit. suit No. M/147/95 challenging the auction sale. He claimed as follows:-

“1. A Declaration that the purported Auction of the immovable property covered by Statutory Certificate of Occupancy No. B/3131 on 4/2/95 is Null and void ab initio.

2. A Declaration that the purported Sale of the said property by the first Defendant is Null and Void ab initio.
3. A Declaration that the Conduct of the purported Auction by the third Defendant and purported Sale and purchase by the first Defendant to the 2nd Defendant respectively is contemptuous of the Court.
4. An Order Setting-aside the purported Conduct of the said auction.
5. An Order setting-aside the purported Sale of the said property.
6. An Order for perpetual Injunction Restraining the Defendants, their Servants, Agents, privies or whosoever Claiming for or by them jointly or severally from further Conduct of Auction Sale of the said property.
7. One Million Naira (N1,000,000) as General Damages.
8. The Cost of this Suit”

The appellant followed this new Suit by a Motion on Notice No. M/94M/95.

The appellant was praying in the Motion for an order of the trial court to set aside the auction sale on two grounds-

1. that he had a pending Suit No. M/29/95 in the court yet to be decided.
2. that no public bidding took place at the auction sale but the property was purportedly sold to an undisclosed purchaser.

The Motion was extensively argued and contested by learned counsel on both sides and in a considered Ruling as a result thereof, the learned trial judge concluded-

“On the totality of the determinations supra, it is my considered opinion and it follows that the motion in issue No. M/94M/95 in suit No. M/29/95 is incompetent on the ground that the applicant had failed to comply with order of court and thus in contempt of the said order made the 23rd January 1995 on exhibit 1 attached to the counter affidavit of the respondent. The order which was to the effect that the N500.00 costs which ought to be paid before any further step is taken in the said case. In the same vein and with Suit No. M/147/95 also filed after the courts order and thus amounting to contempt of such order on the failure to comply with the said cannot also be competent.

In the result and on the totality of the matter before me I hold the view that both the motion in point and also the Suit No. M/147/95 are hereby refused and struck out respectively. Consequently and with the same motion being incompetent I do not consider it necessary to dwell into the rest of the arguments and authorities cited which in view of the incompetency lack foundation.

While motion No. M/94M/95 is refused the Suit No. M/147/95 is struck out. I also make no order as to costs.”

Against this Ruling, the appellant appealed to the Court of Appeal. The unanimous judgment of the Court of Appeal, the lead of which was delivered by Muntaka-Coomassie JCA, dismissed the appeal.

The appellant has now further appeal to this Court. Both parties filed and exchanged briefs of argument.

In the brief filed by the appellant, one issue was raised for consideration and determination by this court. It reads-

“Can it be said that the learned Justices of the Court of Appeal, Jos Division were right in affirming the decision of the trial High Court when the decision was not based on the merit of the case”

The Respondent adopted this issue in its brief.

It was the contention of the learned counsel for the appellant that having filed Suit No. M/29195 on 27th January, 1995, it was wrong for the Respondent to carry out the auction sale of the property in dispute on 4th February, 1995. He then filed Suit No. M/147/1995 and Motion No. M/94M/1995 praying for the court’s intervention to set aside the auction sale, and submitted that the trial Judge, instead of considering the merit or other-wise of the application went ahead to consider the competence of the Motion No. M/94M/95 and Suit No. M/147/95 which he claimed has not then come before her and wrongly found that the appellant, having not paid the costs earlier awarded in suit No. M/177/94 was in contempt of that order and struck out both the Suit and the Motion. He submitted that the Court of Appeal was wrong to have affirmed the trial court’s decision.

In reply learned counsel for the respondent extensively went into the antecedents of the case and the various applications and different suits filed by the appellant without complying with orders made by the learned trial judge as regards the payment of costs awarded before taking any further step in resuscitating the case. He stated that the appellants’ effort to get an order of the court to restrain the auction sale was refused and the auction went ahead on 4th February, 1995 as arranged and the property was sold to the highest bidder. In paragraph 6 of the Respondent’s brief learned counsel contended as follows:-

“The trial court delivered a well considered Ruling on the 14th October, 1995 and dismissed the said motion No. M/94/M/95 and also struck out the latest substantive suit No. M/147/95. See pages 59 – 72 for the Ruling of the Trial Court. This is reminiscent of the fact that the substantive suit No. M/29/95 is still pending at High Court No. 3. Maiduguri (as stated supra). It is therefore against this background and Ruling that the appellant appealed to the Court of Appeal, Jos and thereafter to this Honourable Court.”

He urged this court to affirm the decision of the Court of Appeal and dismiss the appeal.

Suit No. M/29/95 is the suit filed after the two previous suits M/135/87 and M/l77/94 were struck out with award of N500.00 costs in favour of the Respondent in respect of each suit with an order that no further steps be taken in the case until costs were paid. Further steps in the con could be either by payment of the relevant costs and thereafter getting the case relisted or seeking to withdraw or abandon the cases after evidence of due payment of the costs. Thereafter the appellant would be free to file a fresh action as he purported to do. It is a condition precedent that the order of the court had to be complied with before either of the options open to the appellant.

What seemed to have happened is that while the appellant was testifying in Suit No. M/135/87 he stopped coming to court in 1992 and after all efforts to bring him to court to continue his evidence had failed, learned counsel for the respondent applied to the court to strike out the case. This was granted on 11th July, 1994. The suit was struck out, and N500.00 was awarded to the respondent as costs with a rider that before any further step was taken towards relisting the suit, the N500.00 costs had to be paid as a condition precedent. This was on 11th July. 1994.

The appellant, instead of complying with the court order, filed a fresh Suit No. M/177/94 claiming same reliefs as in M/135/87 (supra). This suit was also struck out on 23rd January, 1995 on ground that the appellant had failed to pay the costs awarded against him on 11th January, 1994. The court awarded N500.00 costs to the Respondent with an order that no further step was to be taken in the case until the costs awarded were paid.

The appellant did not comply with the court order and proceeded to file another fresh case on 27th January, 1995 Suit No. 29/95, claiming the same reliefs as in the previous two cases. In the interval the appellant filed Motion No. M/149/94 praying for an order of interlocutory injunction to restrain the Respondent from conducting the sale by auction of the appellant’s property in dispute. On 23rd January, 1995 this application was refused. The property was sold by auction on 4th February, 1995.

On 20th February, 1995 the appellant filed a Motion No. M/94/95 on Notice challenging the sale. He also filed another suit No. M/147/95 on 2nd May, 1995 asking for a declaration that the purported sale by auction was null and void.

It should be borne in mind that the appellant had filed suit No. M/29/95 albeit improperly which was still to be dealt with. At the time the appellant filed Suit No. M/147/95 the respondent filed a Notice of Preliminary objection dated 4th October, 1995 to the hearing of the said case by reason of the appellant’s failure to comply with the order of the court in Suit M/177/94.

Motion M/94/M/95 was argued along with the Respondent’s preliminary objection. The learned trial Judge after a painstaking consideration of the Motion and the preliminary objection before it, delivered a Ruling on 14th October. 1995 and refused the prayers asked for in Motion No. M/94M/95 and also struck out Suit No M/147/95 as incompetent.

The Court of Appeal, having meticulously considered the appeal before it came to the following conclusions on the only issue raised and canvassed before it [as per the lead judgment of Coomassie JCA]:-

It is manifest from the appellant’s counter-affidavit filed on 9/10/95, made part of the bundle of records before us, that the appellant did appear to be uncertain as to whom he paid the said all costs.

Paragraph 5 reads thus-

“That all costs ordered in favour of the 1st defendant has been paid by me either through the court or directly to it.”

(italics mine).

Whether the payment by the appellant was made through the court or directly to the respondent there must be evidence of payment to be attached to the counter-affidavit. That is not forth coming.”

“While I agree that it is not desirable for the courts to make unbriddled orders, and that court should not do any thing to put a clog in the wheel of justice orders of the court are to be respected and obeyed. The dignity and honour of court cannot be maintained if its orders are treated disdainfully and scornfully without due respect. Consequently non-compliance with an order of court makes a matter or suit incompetent. I entirely with respect, agree with the stand taken by the Supreme Court in the case of Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) p. 539 at 558-559 per Karibi Whyte JSC thus-

‘The grant of stay of Execution is entirely within the discretion of the court making the order. For an applicant to be entitled to the exercise of discretion he must bring his conduct within the legitimate scope of the exercise of discretion. See Leavis v. Leavis (1921) p. 299. Hence, where he is in continuing disobedience of order of court. I do not conceive it legitimate to consider the exercise of discretion in his favour. See Gower v. Gower (1938) p. 106. The contumacious behaviour is more egregious and censorious where the applicant seeks the discretion of the court to endorse such a behaviour.

The Court guards its powers and image jealously. It should therefore be extremely wary in the manner it exposes such image, the diminution of its powers and the enforcement of its authority to public ridicule. In my respectful opinion as no court has an inherent jurisdiction to set aside the exercise of discretion of another except where such exercise has been capricious, or based on extraneous factors, and not following the accepted principles so will the valid exercise of discretion to stay execution not be interfered with …” In the circumstances I agree with the learned trial judge that all the suits filed pending or struck out and all the motions filed as a result of same are incompetent and therefore a nullity. That court cannot therefore assume jurisdiction to entertain them. I refer to Macfoy v. UAC Ltd. (1962) AC 152 at 160 and Esuku v. Leko (1994) 4 NWLR (Pt. 340) p. 625/632.”

In his concurring judgment and in emphasis to the findings and conclusions in the lead judgment of the court by Coomassie JCA, Edozie JCA commented-

“In the case in hand, the issue in controversy was whether the appellant had paid the costs awarded against him in previous proceedings which according to a further order of the court below was a condition precedent to his taking a further step in the proceeding before the court below. The appellant asserted that he had paid the costs but his deposition to that effect appears vague.

He deposed:

“That all costs ordered in favour of the 1st defendant has been paid by me either through the court or directly to it.”

By the above averment it would appear that the appellant was unsure of paying the costs otherwise he could not have been speculating whether it was paid through the court or directly to the respondent. ”

“In regard to the disobedience of court order, it is the law that a person who is in contempt of a subsisting court order is not entitled to be granted court’s discretion to enable him continue with the breach. Lawal Osula v. Lawal Osula (1995) 3 NWLR (Pt.382) 128 at 143; First African Trust Bank Ltd. & Anor. v. Basil O. Ezegbu & Anor. (1992) 9 NWLR (Pt.264) 132. In the case of Mobil Oil (Nig.) Ltd v. Assan (1995) 8 NWLR (Pt. 412) 129 at 143, the Supreme Court said:-

“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. A party who knows of an order irregular cannot be permitted to disobey it.”

“See Ezekiel Hart v. Ezekiel Hart (1990) 1 NWLR (Pt.126) 276 Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt.18) 621 at 637, Odogwu v. Odogwu (1992) 2 NWLR (Pt.225) 539 at 556 Nigerian Army v. Mowarbi (1992) 4 NWLR (Pt.235) 345 at 352. In the case on hand, the order of the court below was to the effect that the appellant should not take any further step in the proceedings until costs awarded against him has been paid. It is well settled that where a statute provides for the fulfillment of a condition before an action is commenced, failure on the part of the plaintiff to fulfil the condition will render the entire action and the subsequent trial a nullity, however ably it was conducted: See Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387; Raymond Obeta & Attorney-General Enugu State v. Josephat Maduabuchi Okpe (1996) 9 NWLR (Pt. 473) 401 at 445. By analogy, It seems to me that the suits filed by the appellant in disobedience of the pre-condition to pay the costs awarded by the court below are incompetent.”

I cannot agree more with these findings and conclusion referred to supra. Where a party has refused to implement a court order, the court will not give him audience. See Mobil Oil Nigeria Ltd. & Anor. v. S.T. Assan (1995) 8 NWLR (Pt.4l2) 129: (1995) 9 SCJN 97.

Courts do not exercise their discretionary powers to aid those who flout its orders. The conduct of the appellant in this case is not only a glaring abuse of court process and contempt of its lawful orders but also most irresponsible and reprehensible.

The appeal has no merit and it is accordingly dismissed. The decisions of the lower court and the court below are hereby affirmed with N10,000.00 costs to the Respondent.

SC.69/1997