David Ogba Onuoha V. National Bank of Nigeria Ltd & Anor (1999)

LawGlobal-Hub Lead Judgment Report

SANUSI, J.C.A. 

This is an appeal against the Ruling of Olusola Thomas J. of the Lagos Division of the Lagos State High Court delivered on the 22nd December, 1988. The 2nd Defendant now Appellant by way of preliminary objection challenged the jurisdiction of the lower court to entertain the suit before it as well as its competence to entertain the action on the ground that the said action amounts to abuse of court’s process. The trial judge dismissed the objection by the 2nd Defendant/Appellant. Aggrieved by the decision in the Ruling he appealed to this Court.

In his brief of argument filed on 18/3/96 Appellant identified and formulated two issues for determination, namely:

(a) Whether having regard to Order 1A Rules 3 & 4 of the High Court of Lagos State Civil Procedure Rules, the Lagos Judicial Division is a convenient forum to hear and adjudicate upon the suit.

(b) Whether the learned trial judge having regard to the affidavit evidence and the exhibits placed before him was right in holding that the issue of whether the suit amounts to an abuse of process of court could not be treated and/or determined as preliminary point of law.

The Appellant’s counsel at the hearing of this appeal abandoned the 1st issue for determination. The said issue and the ground of appeal related thereto were accordingly struck out leaving only one and that is, the 2nd issue for determination.

The Respondents’ counsel also adopted the remaining issue for determination as his own too.

Let me therefore deal with the only issue left, that is to say, whether the alleged abuse of court process could be determined as a preliminary point of law.

The learned trial judge in his ruling at p. 290 line 17- 25 of the Record of Proceeding held thus:-

“However, having regard to the point of law as to whether the suit before this court is maintainable when four other suits on the same subject matter as this suit had been filed against the 2nd defendant by agents of the plaintiff in the High Court of Aba, it will be necessary and desirable to ascertain facts beyond those that appear in the pleadings for this reason, I cannot order the trial of this question in controversy as a preliminary point of law.”

It is the submission of the learned counsel for the appellant that the learned trial judge erred in law when he held that the issue whether the suit amounts to an abuse of process of court could not be treated and/or determined as preliminary point of law. He submitted that trial of a preliminary issue is a departure from the beneficial object of the law that all disputes should be tried together, as such an order for trial of a preliminary issue is made only in exceptional circumstances or on special grounds. See Piercy v. Young (1880) 15 Ch. D 475 at 479.

The centre point of this issue is the alleged pendency of multiplicity of cases filed in Aba High Court involving the parties on the same subject matter and claiming same reliefs. The argument of the Appellant is that the Respondent by their attorney had instituted four actions at the High Court, Aba. He went further to say that the Respondent did not deny the pendency of the said suits. Below is what he asserted in his supporting affidavit sworn on 12th May, 1987. It reads thus:-

“19. That the plaintiffs know very well that the cause of action arose at Aba where all the transactions took place and where all the Defendants reside and carry on business whereupon they instituted the above actions there.

20. That I am exposed to duplicity of actions in the two different jurisdiction in respect of the present suit.
21. That the plaintiff has no other claim against me except those in the four suits now repeated in the present suit.”

On the other hand, in acounter affidavit sworn to on behalf of the Respondent/Plaintiff by one James Bola Adererni on 14/10/1997 there exist these averments:-