First Bank Of Nigeria Plc. V. T. S. A. Industries Limited (2012)

LAWGLOBAL HUB Lead Judgment Report

OLU ARIWOOLA, J.S.C

This is a ruling on the application of the Respondent. The applicant had sought the following:

“An order setting aside, the judgment given by this Honourable court on the 9th July, 2010 on the ground that same was given under the mistaken and erroneous assumption that there was an appeal before this Honourable court against the Ruling of the court below given on the 26th September, 2005 when in fact there was no such appeal.”

The applicant gave the following as the grounds for seeking the said order.

“1. It is settled law that it is only a valid Notice of Appeal before the Supreme Court against the judgment or order of the Court of Appeal that activates the appellate jurisdiction of the Supreme Court to sit on a judgment or Order of the Court of Appeal.

2. That an order of the Supreme Court made without its jurisdiction being properly and antecedently activated is a nullity.”

In support of the said application is an affidavit of 8 paragraphs deposed to by one Felix Orogun, the Managing Director of the applicant.

Attached to the application are the following documents marked as Exhibits.

1. The Judgment of the Supreme Court delivered on July, 9th 2010 in SC/316/2006 – Exhibit TSA1.
2. Appellant’s Further Amended Notice of Appeal dated and filed on October 20th 2008 in SC/316/2006 – Exhibit TSA2.
3. Drawn-up Order and Record of Proceedings of the Court of Appeal dated September 26th, 2005 dismissing Appellant’s substantive appeal No.CA/L/200/2001 under Order 6 Rule 10 of the Court of Appeal Rules, 2002 – Exhibit TSA3.
4. Record of Proceedings, and Drawn-up Order of the Court of Appeal, dated June 14th 2005 and June 16th 2005 respectively in Appeal No.CA/L/200/2001 – Exhibit TSA4.
5. Ruling of the Court of Appeal, delivered on December, 11th 2006 in CA/L/200/2001 (the Ruling appealed against in SC/316/2006 Exhibit TSA5.

When moving the application, Chief Ladi Rotimi-Williams, SAN predicated same on Sections 233 (1), 18(2) of the 1999 Constitution of the Federal Republic of Nigeria and the inherent jurisdiction of this Honourable Court. He urged the court to grant the application.

In opposing the application, the Respondent/Appellant filed a counter affidavit of 6 paragraphs to which one Tomi Olagunju deposed as a Solicitor in the Law firm of Citipoint (Legal Practitioners), Counsel to the Appellant. Attached to the said counter affidavit are various documents purportedly marked as Exhibits TOA, TOB, TOC, TOD, TOE and TOF respectively

The Respondent later filed a further counter affidavit on 6/3/2012 and attached other documents stated in the counter affidavit to be marked as Exhibits TOG, TOH, TOI, TOJ and TOK respectively.

In his response to the application, Mr. Olumide-Fusika referred to both counter affidavits and contended that the applicant had brought two similar applications previously filed on 15/7/2010 and 5/5/2011 respectively. While the first application was struck out with costs of N30, 000 against the applicant but in favour of the Respondent, the second application was withdrawn by the applicant and struck out, again with costs of N30, 000.00 in favour of the Respondent. Learned counsel contended further, that the instant application is the third, seeking the same relief. He submitted that the applicant’s attitude is an abuse of court process and should not be allowed by the court.

Learned counsel to the Respondent further argued that the same relief being sought in the instant application and the two previous ones had earlier been vigorously argued by way of preliminary objection in the main appeal and was duly considered by the court in its judgment. The said preliminary objection was then resolved by this court against the applicant. He referred to the decision of this court reported in (2010) 15 NWLR (pt. 1216) 247 in particular, page 301 paragraph (e) to page 302 paragraph (h). He submitted that this application constitutes an abuse of court process.

On the conditions when this court can set aside its own decision, he referred to Order 8 Rule 16 of this Court’s Rules, 2009. He submitted that the court cannot review its decision except to correct clerical mistakes or some errors or accidental slip or omissions or to vary the judgment or order to give its meaning or intention of a judgment.

He finally submitted that the instant application is wholly abusive of the process of this court hence should be dismissed.

When replying, as he is entitled to, on point of law, Chief Ladi Rotimi Williams, SAN stated clearly that he was not before the court to seek a review of its judgment but within a narrow compass. That, only a valid Notice of Appeal can activate the appellate jurisdiction of this court against an appeallable order of the court below.

He referred to the Ruling of this court per Mahmud Mohammed, JSC which struck out the application but did not dismiss same. He submitted that the application which challenged the jurisdiction of this court was merely struck out but not dismissed. He relied on the cases of Panalpine World Transport Nig. Ltd. V. J. B. Oladeen International & Ors (2010) 19 NWLR (Pt.1226) 1 at 20 and Asam V. Dakan (2006) All FWLR 91 at 107, FMBN V. NDIC (1999) 2 NWLR (Pt.591) 333-359. He urged the court to allow the application.

As shown earlier, this application which was filed on 16/11/2011 is seeking an order of this court setting aside the Judgment of the court given on the 9th July, 2010, “on the ground that same was given under the mistaken and erroneous assumption that there was an appeal before this Honourable Court against the Ruling of the Court below given on the 26th September, 2005.” The applicant’s contention was that there was no such appeal before the court upon which the said judgment could have been based.

From the facts deposed to in the Affidavit, counter affidavit and further counter affidavit with the various annexures marked as Exhibits, the following emerged as established not requiring any further proof not being in dispute.

– Originally and before the trial court, the instant Appellant was the defendant in suit No.ID/9/98 while the Respondent herein was the Plaintiff.

– On 23/01/2001, the High Court of Lagos State, Ikeja Division delivered its judgment in favour of the Plaintiff/Respondent.

– Dissatisfied with the decision, the defendant/appellant filed a Notice of appeal against the said judgment.

– By way of departure, the appellant sought to compile the Records of appeal while the Respondent filed the supplementary record.

– The defendant/appellant sometime on 5/6/03 field an application for extension of time to file its brief of argument but the application was struck out by the Court of Appeal on 14/6/05.

– On 26/9/2005 acting on the application of the Respondent, the Court of Appeal dismissed the appeal pursuant to Order 6 rule 10 of the Court of Appeal Rules, 2002, for failure to file appellant’s brief of argument.

– The appellant filed an application on 01/6/2006 urging the Court of Appeal to set aside the order of dismissal made pursuant to Order 6 Rule 10 (supra).

– On 11/12/2006 the Court below in its considered ruling refused to set aside its ruling of 26/9/2005, for the reason, inter alia, that it had become funtus officio on the matter.

– Appeal No.SC.316/2006 upon which the instant application is predicated was the appeal against the ruling of the Court of Appeal delivered on 11/12/2006 refusing to set aside its ruling of 26/9/2005 and relist the appeal that was dismissed by it.

– The judgment of this court on the said appeal, delivered on 9/7/2010 is what is being sought to be set aside in this application by the Respondent.

– Ground 1 of the Grounds of Appeal in the further amended Notice of Appeal Exhibited to this application as on TSA2 reads thus:

“1. The learned Justices of the Court of Appeal erred in law in refusing to set aside their order of September 26, 2005 dismissing the Appellant’s appeal No.CA/L/200/2001 when the said order of dismissal was made at a time the Court of Appeal had no jurisdiction to contemplate any proceedings for the dismissal of the Appellant’s said Appeal.

PARTICULARS

(a) As of September 26, 2005 when the learned Justices of the Court of Appeal dismissed the Appellant’s Appeal No. CA/L/200/2001, there was pending in the Supreme Court of Nigeria the Appeal No.SC/389/2001 emanating from and relating to the said Appeal No.CA/L/200/2001.

(b) It is the law that when an appeal is pending at a higher court on a matter before a lower court, the lower court ought not to do anything which would present the higher court with a fait accompli or render the outcome of the appeal at the higher court nugatory.

(c) Respondent’s Application dated 23rd June 2005 (Exhibit FBN7) which sought the dismissal of Appellant’s Appeal No.CA/L/200/2001 had the effect of also seeking the termination of Appellant’s Appeal No. SC/389/2001 and the Court of Appeal had no jurisdiction to contemplate or grant such an application before the hearing and or termination or determination of Appellant’s Appeal No.SC/389/2001, at the Supreme Court.

(d) The order made on the 26th of September, 2006 by the learned Justices of the Court of Appeal dismissing the said Appeal No. CA/L/200/2001 had the effect of terminating the Appellant’s Appeal No.SC/389/2001 which was then still pending before the Supreme Court.

(e) The Court of Appeal lacks the jurisdiction to dismiss an appeal, whether under Order 6 Rule 10 of the Court of Appeal Rules, 2002, or for any other reason whatsoever, at a time an appeal relating thereto is also pending before the Supreme Court.”

Amongst the reliefs sought by the appellant in the appeal before this court then was:-

“Setting aside the order of dismissal dated September 26, 2005 of the Court of Appeal in this matter.”

It is interesting to note that the said appeal that culminated in the judgment being attacked and sought to be set aside, the applicant fought the appeal vigorously. Indeed, the applicant as Respondent first raised Preliminary Objection to the appeal. Ground one of the grounds upon which the said preliminary objection was based is as follows:-

“Where an appeal has been dismissed by the Court of Appeal under Order 6 Rule 10 of the Court of Appeal Rules, 2002, it cannot be relisted or registered as that court has become functus officio, since the dismissed is on final decision and once an appeal is so dismissed the Court of Appeal or any court has no jurisdiction to revive such an appeal by re-entering or relisting same and this honourable court has no Jurisdiction to do so as provided for in section 232 (1) of the Constitution of the Federal Republic of Nigeria, 1999.”

However, in the main appeal, one of the issues raised by the Respondent/Applicant is as follows:

“Whether the dismissal of an appeal in the Court of Appeal under Order 6 Rule 10 of the Court of Appeal Rules, 2002 can be set aside by any court or whether such an appeal can be revived or relisted under Order 7 Rule 5 of the Court of Appeal Rules.”

This court in its reserved judgment had considered, inter alia, the above ground one of the preliminary objection and issue one of the Issues formulated by the Respondent for determination of the appeal. The Court had opined as follows:

“Both the preliminary objection and the issue for determination raised the same question which to my mind is the core issue for determination in this appeal. In other words, where an appeal has been dismissed under the provisions of Order 6 Rule 10 of the Court of Appeal Rules, 2002, can such an appeal be revived or relisted under Order 7 Rule 5 of the Court of Appeal Rules, 2002.”

After due consideration of the arguments and submissions of counsel on the above issues, this court concluded in its judgment as follows:-

“Ordinarily, the appellant was entitled to challenge the dismissal order of the Court of Appeal at the Supreme Court. Order 7 Rule 5 requires that the appellant in exercising that option to make its application within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity and to state the grounds of the objection. It is pertinent to note that this issue was not canvassed for the appellant at the Court of Appeal, but now the appellant with the indulgence of this court pursuant to the leave granted on the 20th of June, 2007 permitting the appellant to argue same as a fresh issue. The Court is to hold that Order 6 Rule 10 of the Court of Appeal Rules, 2002 can be challenged by the affected party for good cause and revisited and/or set aside by the Court of Appeal under the newly introduced Order 7 Rule 5.”

This court had gone further in the judgment as follows:-

“There is no doubt about it that the appellant having been deprived of the opportunity to participate in the Court proceedings of 26/9/05 where his appeal was dismissed under Order 6 Rule 10 of the Court of Appeal Rules, 2002 due to lack of service, his right to fair hearing has been breached. Any judgment or ruling based on breach of the constitutional provisions of fair hearing as provided in Section 36 of the 1999 Constitution will not be allowed to stand on appeal.”

In the final analysis in the said judgment, this court had overruled the preliminary objection of the Respondent/Applicant and allowed the appeal. The order of dismissal by the court below made on 26/9/2005 was set aside along with the order in the Ruling of 11/12/2006 equally set aside.

It is note worthy, that almost one year after the judgment of this court the applicant brought an application filed on 5/5/2011 seeking the same prayer as sought in the instant application. The said application was withdrawn by the Respondent/Applicant and same was accordingly struck out on 5/3/2012. (See Exhibit TOH attached to the further counter affidavit).

Subsequently, the Applicant who had earlier filed another application on 12/7/2010 seeking to set aside the judgment of this court of 9/7/2010, though duly served with hearing notice and was aware of the hearing of his application yet was absent and not available to move his application, same was accordingly struck out on 3/5/2011.

The applicant again on 9/6/2011 filed another application seeking an order to set aside the Ruling and proceedings of this court, delivered on 3/5/2011 which struck out the application of 15/7/2010.

On the 18th October, 2011 when the application came up for hearing, it was dismissed by this court with N30, 000.00 costs to the Respondent. (See Exhibits TOJ and TOK attached to the further Counter affidavit respectively).

Interestingly, it was after the dismissal order in Exhibit TOK that the applicant again filed the instant application on 16/11/2011.

There is no doubt that the issue that is indirectly involved in the instant application was vigorously contested by the applicant as Respondent to the Appeal both in its preliminary objection and response to the appeal. The issue has been considered and resolved in the judgment of this court being sought to set aside.

The Respondent therein had argued that the instant application is an abuse of court process, hence it should be dismissed. While the applicant’s counsel, Chief Ladi Rotimi Williams referred to the Ruling of this court, per Mahmud Mohammed, JSC which merely struck out the application he had earlier filed but did not dismiss same hence learned Senior Counsel submitted that the applicant was right in bringing up the same application which challenges the jurisdiction of this court.

What then constitutes an abuse of court process In other words, how can the process of court be abused Before I examine or answer the question posed above, it is pertinent to state clearly that except an application is dismissed properly by the court, which may necessitate or require the applicant to appeal against such dismissal order, the applicant is not limited to a number of times he can bring a particular application by way of re-filing the application which was struck out but not dismissed by the court. An application that is merely struck out without more can be properly re-filed over and over again by an applicant.

However, in the exercise of an applicant’s right to re-file an application that was struck out but not dismissed, the use of such freedom or right to refile a process of court merely struck out must not be abused by a party.

This court has in a plethora of cases considered the said question – what constitutes abuse of judicial process One of such cases which set out the guiding principle is Mrs F. M. Saraki & Anor V. N. A. B. Kotoye (1992) 9 NWLR (Pt.264) 156 at pages 188-189, per Karibi-Whyte, JSC, as follows:

“The concept of abuse of judicial process is unprecise. It involves circumstances and situations of infinite varieties and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.”

It is recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigations. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue. See Okorodudu V. Okoromadu (1977) 3 SC 21; Oyebola V. Esso West African Inc. (1966) 1 All NLR 170. Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right; rather than the exercise of the right, per se. The abuse consists in the intention, purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds. See Harriman V. Harriman (1989) 5 NWLR (Pt.119) 6.”

Also in African Reinsurance Corporation V. JDP Construction Nigeria Limited (2003) 4 SCM 1 at 17, this court had held as follows:

“…where a party duplicates a court process, the more current one which results in the duplication is regarded as an abuse of the court process.”

Abuse of process of court is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process…

See; Amaefule V. The State (1988) 2 NWLR (Pt.75) 156. An abuse of process always involves some bias, malice, some deliberateness, some desires to misuse or pervert the system. See Edet V. The State (1988) 4 NWLR (Pt.91) 722.”

As clearly shown above, the order of the Court of Appeal contained in the court’s Ruling of September 26, 2005 dismissing the Appellant/Respondent’s Appeal No. CA/L/200/2001 was part of the Grounds of Appeal decided by this court in the judgment being sought to set aside. As stated earlier, the Respondent in the said appeal argued vigorously both in its preliminary objection and the appeal on the merit. This court considered the submissions of both counsel and clearly resolved the issue against the Applicant herein but in favour of the Respondent herein who was the appellant in the appeal. In other words, the issue being sought to be considered again by way of this instant application is, to say the least, a misconception.

It is interesting to note that the learned Senior Counsel by whose application the court below made the Order given on the 25th September, 2005, dismissing the appeal of the Respondent herein pursuant to Order 6 Rule 10 of the Court of Appeal Rules 2002, also actively participated in the appeal that led to the judgment being sought to set aside. This court considered extensively the appropriateness or otherwise of the court below in dismissing the Respondent’s appeal as it did.

Upon consideration of the appropriate issues for determination of the appeal to the issue, this court had held, inter alia, as follows:

“There is no doubt about it that the appellant having been deprived of the opportunity to participate in the court proceedings of 26/9/2005 where his (sic) appeal was dismissed under Order 6 Rule 10 of the Court of Appeal Rules, 2002 due to lack of service his (sic) right to fair hearing has been breached. Any judgment or ruling based on breach of the Constitutional provisions of fair hearing as provided in section 36 of the 1999 Constitution will not be allowed to stand on appeal….

Order 6 Rule 10 of the Court of Appeal Rules, 2002, shall in the circumstance give way to section 36 of the Constitution. All the germane issues raised in this appeal, which I have considered, are decided in favour of the appellant.”

Accordingly, the court made the following Orders:

“(a) The preliminary objection is over-ruled.

(b) The appeal succeeds and it is allowed

(c) The appeal is to be remitted back to the Court of Appeal, Lagos to be relisted and heard before another panel of justices of the Court of Appeal

(d) The order of dismissal of the appeal made on the 26th of September 2005 is set aside.

(e) The order in the Ruling of 11/12/2006 is set aside.”

As noted earlier, this application is seeking an order of this court to set aside its judgment which was delivered on the 9th July, 2010 on the ground that same was given under the mistaken and erroneous assumption that there was an appeal before it “against the Ruling of the Court below on the 26th September, 2005 when in fact there was no such appeal.”

There is no doubt that this court does not have the power or competence or jurisdiction to consider an application to review its judgment once delivered. The Supreme Court being the final court of justice of Nigeria, its decision is final and cannot be altered or reviewed by any other court or by itself except by itself on exceptional and specific circumstances. Order 8 Rule 16 of the Supreme Court Rules (as amended) provides thus:

“The court shall not review any judgment once given and delivered by it, save to correct any clerical mistake or some errors arising from any accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative and substantive part of it be varied and a different form substituted.”

However, that is not to say that this court does not have the inherent power to set aside its judgment in appropriate cases. This court has in several decisions restated that its decision shall be final and appeal does not lie against it to any other court.

In Chukwuka & Ors V. Ezulike & Ors (1986) 5 NWLR (Pt.45) 892, (1966) 2 NSCC (Pt.17) 1347, this court, per Uwais, JSC (as he then was) on the finality of the decision of this court, stated thus:

“There is no appeal in this court against the decision of 12th November, 1985, and it is obvious that there cannot be such an appeal since no jurisdiction has been conferred upon this court to sit on appeal over its own decision, no matter how manifestly wrong the decision may be. See Paul Cardoso V. John Bankole, Daniel & Ors (1986) 2 NWLR (Pt.20) 1 at 28 (it proceeded to quote from it as follows:-

Consequently, it is clear that we cannot by submissions made by Chief Williams hold that the decision of this court on 12th November 1985 is a nullity by virtue of the appeal itself being competent and this court lacking in jurisdiction. However, this is not to say that the court cannot in a subsequent and different case depart from its decision in a previous case, if the principles laid down for such departure apply. See Akinsanya V. UBA Ltd. (1986) 4 NWLR (Pt. 35) 273 at 325. But that is not the same as setting aside or declare a nullity the decision in the previous case.”

In Adegoke Motors Ltd V. Adesanya & Anor (1939) 5 SC 113; (1989) 3 NWLR (Pt.109) 250 at 274, on the inherent power of this court to set aside its decision whenever necessary, it had been stated thus:

“We are final not because we are infallible; rather we are infallible because we are final. Justices of this court are human beings capable of erring. It will be short-sighted annoyance not to accept this obvious truth.”

Therefore, the following are such cases where this court will sequel to appropriate application set aside its own judgment:

1. When the judgment is obtained by fraud or deceit either in the court or of one or more of the parties. Alaka V. Adekunle (1959) LLR 76, Plower V. Lloyd (1877) 6 Ch.D.297, Olufunmise V. Falana (1990) 3 NWLR (pt. 136) 1.
2. Where the judgment is a nullity and a person affected by the order of court which can be described as a nullity is entitled ex debito justicia to have it set aside. Sken Consult Ltd. V. Ukey (1981) 1 SC 6, Craig V. Kansen (1943) 1 KB 256, 262 and 263. Ojiako & 7 Ors V. Ogueze (1962) 1 SCNLR 112 Okafor & Ors. V. A.G. Anambra State & or s (1991) 6 NWLR (Pt.200) 659 at 680.
3. When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it. Agubiade V. Okunoga & Co. (1961) All NLR 110, Obimonure V. Erinosh O. (1966) 1 All NLR 250.
4. Where the judgment was given in the absence of jurisdiction. Madukolu V. Nkemdilim & Ors (1962) 2 SCNLR 341. Sken Consult V. Ukey (1981) 1 SC.6.
5. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. Igwe & Ors V. Kalu & Ors (2002) 14 NWLR (Pt. 987) 435, (2002) 12 SCM 89 Alao V. ACB Ltd (200) 9 NWLR (Pt.672) 264.

In a full court’s decision of this court, viz, Eleazor Obioha V. Innocent Ibero & Anor (1994) 1 NWLR (Pt.322) 503, the court reached the following conclusions:

“By virtue of Section 215 of the 1979 Constitution (now Section 235 of the 1999 Constitution), the Supreme Court cannot sit on appeal over its own judgment. The provision gives a stamp of finality to any decision of the Supreme Court. There is no constitutional provision for the review of the judgment of the court by itself. Indeed there can be no appeal questioning the decision of the Supreme Court to itself or to any body or person as there must be a finality to litigation. Hence, the appellate jurisdiction of the Supreme Court is limited by Section 213 (2) of the 1979 Constitution (now Section 233 (2) of the 1999 Constitution) to hearing appeals from the Court of Appeal only and no more.” (Brackets supplied).

There is no doubt, and I am of the firm view that this application does not fall into one of the exceptions listed above where this court can set aside its judgment. What is more, with the active participation of the applicant’s counsel in the appeal that led to the judgment being sought to be set aside, this application is not only incompetent but also vexatious, to say the least.

In the circumstance, this application is simply an abuse of court process and it is liable to dismissal. Where the court comes to the conclusion that its process is abused, the appropriate order to make is that of dismissal of the process. See; Chief Arubo V. Aiyeleru (1993) 3 NWLR (Pt.260) 126, Kode V. Alhaji Yusuf (2001) 4 NWLR (Pt.703) 392, (2001) 3 SCM 62.

In the final analysis, this application is adjudged an abuse of process of court and it is embarrassingly misleading. Accordingly, it is hereby dismissed.

There shall be costs of N30, 000.00 to the Respondent against the Applicant.

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SC.316/2006 (R)