CORAM

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BIOBELE ABRAHAM GEORGEWILL, JUSTICE, COURT OF APPEAL

FREDERICK OZIAKPONO OHO, JUSTICE, COURT OF APPEAL

FOLASADE AYODEJI OJO, JUSTICE, COURT OF APPEAL

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PARTIES

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ASSET MANAGEMENT CORPORATION OF NIGERIA

APELLANT(S) / CROSS RESPONDENT(S) 

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CANVASS FARMS NIGERIA LTD

ANDREW OSHAME

OLUSEGUN MUYIWA

DELE OLUBOYEDE

ADENIYI MOHAMMED UTHMAN

CROSS-APPELLANT 

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AREA(S) OF LAW

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ACTION, APPEAL, COURT, ESTOPPEL, JUDGMENT AND ORDER, JURISDICTION, LAW OF BANKING, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, STATUTE, WORDS AND PHRASES

 

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SUMMARY OF FACTS

The Respondents instituted this action before the Federal High Court, Lagos Judicial Division, wherein by an Originating Summons brought pursuant to Sections 391 and 395 of the Companies and Allied Matters Act 2004, the Respondents against the Appellants had sought the determination of a sole question to wit: “Whether having regards to the provisions of the Deed of All Assets Debenture dated 10/2/2011 created in favor of Skye Bank Plc.(which was transferred to the Asset Management Corporation of Nigeria) by the 1st Defendant, the 1st Plaintiff is entitled to appoint the 2nd Plaintiff as the Receiver (which it has done) over the affairs of and endeavors of the 1st Defendant”. In the event that the answer is in the affirmative, it claimed for declaratory reliefs.

At the end of the trial, the Court held in favour of the Respondents, wherein it granted all but one of the claims of the Respondents against the Appellants. Dissatisfied with the judgment of the trial Court, the Appellants have appealed against same vide their Notice of Appeal containing six Grounds of Appeal.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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Whether Court below had the jurisdiction to entertain Respondent’s Suit?

Whether decision of the Court below in Suit FHC/IKJ/2012 which ordered that Skye Bank Plc., was not entitled to any charge or interest on the facilities granted to the 1stAppellant and cancellation of all charges or interests whatsoever claimed by the 1st Appellant Defendant on the facilities foreclosed the realization of the credit facilities advanced to the 1st Appellant less charges and interests?

Whether in view of the evidence led, the Court was not right to have granted the reliefs sought by the Respondents?

 

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RATIONES DECIDENDI

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PURPOSE OF A REPLY BRIEF

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“The reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re – argue his appeal or merely to have a second bite at the cherry. The Reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. This is clearly the intendment of Order 19 Rules 5 (1) of the Court of Appeal Rules 2016, which provides thus:

“The Appellant may also, if necessary, within fourteen days of service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief”

See Olafisoye V. FRN 2004 1SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA). –PER B. A. GEORGEWILL, J.C.A

 

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FUNDAMENTAL NATURE OF JURISDICTION – EFFECT OF A COURT LACK OF JURISDICTION

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“My lords, issues one and two deal with the radical issue of competence, which is a threshold question of jurisdiction and in law the issue of jurisdiction is very fundamantal to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. Thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers and in such a sitaution, zealousness to do substantial justice, where there is no competnece, is not a virtue! It is simply over zealousnesss. This is so because ‘without jurisdiction, the laborers that is the litigant and counsel on the one hand and the court on the hand labor in vain’See AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, per Kayode Eso JSC (God bless his soul). See also Madukolu V. Nkemdilim (1962) SCNLR 341. See also Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284. –PER B. A. GEORGEWILL, J.C.A

 

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WHAT CONSTITUTE ABUSE OF COURT PROCESS?

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“Now, the term ‘abuse of Court process’ principally relied upon by the Appellants to contend that the Respondents’ Suit was incompetent, is often seen to be synonymous with multiplicity of Suits or of Court processes, but though that in a way is a correct proposition of the law yet abuse of Court process is much more than mere multiplicity of Suits. In other words, mere multiplicity of Suits or processes is not the only way by which abuse of Court process could be constituted. Simply put, and for lack of a precise or concise definition of the term ‘abuse of Court process’ denotes the improper use of the process of Court to achieve unlawful ends or the employment of the judicial process to the annoyance or irritation or injury of the person of another and thus it can safely pass as a doctrine of law without any precise or concise definition. See Dana Airlines Limited V. Mrs. Grace Eventus Mbong & Ors (2017) LPELR- 43052 (CA) per Georgewill,  JCA. See also Dana Airlines Ltd .V. Yusuf & ors (2017) LPELR 43051 (CA) per Georgewill JCA.

The above position is rightly so because what would constitute an abuse of Court process is very diverse, imprecise and thus subject to infinite or indefinite considerations. In considering whether or not an action or process constitutes an abuse of Court process, the Court is to critically consider the peculiar facts and circumstances of each case in which the issue of abuse of Court process is raised to determine whether in the peculiar circumstances of the case, the act of the party complained of constitutes an abuse of Court process. Happily, over the years authorities have become legion as are replete in the law reports providing some form of guide in carrying out the consideration of whether or not an abuse of Court process has been occasioned by the process of a party. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156. See also Daniel V. FRN (2014) 8 NWLR (Pt. 1410) 570; Harriman V. Harriman (1989) 5 NWLR (Pt. 1199) 6; Ukachukwu V. PDP (2014) 4 NWLR (Pt. 1396) 65; CPC V. Omgbgadu (2013) 18 NWLR (Pt. 1385) 66; Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1; Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (Pt. 1066) 319; Adesokan V. Adegorola (1991) 3 NWLR (Pt. 179) 293; UmehV.Iwu (2008)  8 NWLR (Pt. 1089) 225.

The corollary to the above fluid state of uncertainty and imprecise definition of the term ‘abuse of Court process’ is ironically the settled certainty that the factual situations or categories of facts or circumstances that may constitute an abuse of Court process are never closed and therefore, has no exhaustive list thereof and thus would largely depend on the peculiar facts and circumstances of each case. See Ette V. Edoho (2009) 3 NWLR (Pt. 1144) 601 @ p. 609. See also PDP V. Obi (2009) 3 NWLR (Pt. 1128) 327 @ pp. 339 – 340; Umeh V. Iwu (2008) 8 NWLR (Pt. 1089) 225; Benkay Nig. Ltd. V. Cadbury Nig. Plc. (2006) 6 NWLR (Pt. 976) 338. PER B. A. GEORGEWILL, J.C.A

 

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ESSENTIAL ELEMENTS THAT CONSTITUTES ABUSE OF COURT PROCESS

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“I have averted my mind sufficiently to the essential elements that would constitute abuse of Court process, namely: a. There must be, at least, two matters filed in two different Courts. b. The said different suits are instituted with the goal of pursuing the same rights (even though on different grounds).C. The subject matter and or the questions for determination in the two suits must be substantially the same. d. Frivolous and scandalous use of a lawful Court process to the irritation and embarrassment of another party. See Ogoejeofo V. Ogoejeofo (2006) 3NWLR (PT 966)205 SC. PER B. A. GEORGEWILL, J.C.A

 

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CONCEPT OF ABUSE OF JUDICIAL PROCESS

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“In Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 @ p. 188, the Supreme Court had opined inter alia thus:

“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions….It is recognized that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. But the  employment of judicial process is only regarded generally as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice.” See also Ziklagsis Network Ltd .V. Adebiye & ors (2017) LPELR- 42899 (CA), per Georgewill JCA. –PER B. A. GEORGEWILL, J.C.A

 

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DISTINCTION BETWEEN AN INTEREST AND A CHARGE

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“Now, on the one hand whilst interest is a percentage of the sum advanced which a Bank charges as interest payable in the ordinary course of its business on facilities made available by it to a customer and as agreed by the parties subject however, to the Central Bank of Nigeria’s guidelines on interest, on the other hand, in law a Charge is an encumbrance or lien on a property created for the purpose of securing the fulfillment of an obligation and thus every debenture is a charge on the assets of the debtor, while a debenture is a document that grants lenders a charge over a borrower’s assets, giving them a means of collecting debt if the borrower defaults. See Black’s Law Dictionary 9th Edition. See also AIB Ltd V. Lee & Tee Ind. Ltd (2003) 7 NWLR (Pt. 819) 366 @ p. 393, where it was stated inter alia thus:

“A charge is the appropriation of real or personal property for the discharge of a debt or other obligation, without giving the creditor either a general or special property in, or possession of, the subject of the security.” –PER B. A. GEORGEWILL, J.C.A

 

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CONCEPT OF RES – JUDICATA -TYPES OF ESTOPPEL

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“In law, once a Court of competent jurisdiction has settled, by a final decision, the matters in dispute between the parties neither of the parties nor his privy may re-litigate that issue again by bringing a fresh action. The matter is said to be res – judicata. However, there are two kinds of this estoppel, namely: cause of action estoppel and issue estoppel. For ‘cause of action estoppel’, it would occur once it appears that the same cause of action was held to lie or not to lie in a final judgment between the same parties, or their privies, who are litigating in the same capacity and on the same subject matter. Once this occurs, there must be an end to the matter, the parties are thereby precluded from re-litigating the same cause of action.

However, for ‘issue estoppel’ it would occur once an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties or their privies. This plea is based on the principle of law that a party is not allowed to, that is he is precluded from, contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him by a Court of competent jurisdiction.See Osunrinde&Ors V. Ajamogun&Ors (1992) LPELR – 2819 (SC). See also Fadiora V. Gbadebo (1978) 2 SC 219 per Idigbe JSC @ pp. 228 – 229; Ladega V. Durosimi (1978) 3 SC 91 per Eso JSC, @ pp. 102 – 103. PER B. A. GEORGEWILL, J.C.A

 

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PRINCIPLE OF RES – JUDICATA –PRE-REQUISITE FOR THE APPLICABILITY OF THE PRINCIPLE OF RES-JUDICATA

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“Thus, for the principle of res – judicata to apply in any given proceedings, all the pre-conditions to a valid plea of estoppel must be shown to exist, namely: (1) the same question must be for decision in both proceedings, (2) the decision relied upon to support the plea of issue estoppel must be final, and (3) the parties must be the same or their privies. See Osunrinde&Ors V. Ajamogun&Ors (1992) LPELR – 2819 (SC). See also Fadiora V. Gbadebo (1978) 2 SC 219; Ladega V. Durosimi (1978) 3 SC 91. –PER B. A. GEORGEWILL, J.C.A

 

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MEANING OF THE LATIN PHRASE “FUNCTUS OFFICIO” -WHEN CAN A COURT BE SAID TO BE “FUNCTUS OFFICIO”?

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Now, with respect to the Latin phrase ‘functus officio’ it ordinarily means that a task has been performed or having fulfilled the function or discharged the office, or accomplished the purpose, and therefore of no further force or authority. However, in practice the idea is that the specific duties and functions that an officer was legally empowered and charged to perform have now been wholly accomplished and thus, the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life had become dead or moribund after the performance of the duty or function by the authority. Thus, a Judge or Court, who has decided a question brought before him becomes ‘functus officio’ and therefore, cannot review his own decision except on grounds of want of jurisdiction, fraud, illegality etc. It is settled law that once a Court of competent jurisdiction delivers its judgment on a matter, it cannot revisit or review or set aside the said judgment except under certain conditions and more importantly, a Court would lack the jurisdiction to determine an issue when it is ‘functus officio’ in respect of the issue or where the proceedings relating to the issue is an abuse of Court process. See Black’s Law Dictionary, 6th Edition @ p. 673. See also Buhari V. INEC &Ors(2008) LPELR – 814 (SC); Dingyadi & Anor V. INEC & ORS(2011) LPELR – 950(SC). –PER B. A. GEORGEWILL, J.C.A

 

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PLEA OF RES – JUDICATA – WHEN A PLEA OF RES – JUDICATA WILL NOT AVAIL A PARTY?

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“In my finding, therefore, the issues thrown by these two Suits as so crystal clear and are not the same and thus decision in one of these two Suit does not, did not and therefore, cannot operate as res – judicata to the other. It cannot also constitute the latter Suit as an abuse of Court process with reference to the earlier or former Suit. It follows, and quite logically and legally too, that the Court below was not and cannot be ‘functus officio’ in the determination of the latter Suit and I so hold, See Osunrinde & Ors V. Ajamogun & Ors (1992) LPELR – 2819 (SC). See also Ogoejeofo V Ogoejeofo (2006) LPELR – 2813 (SC); Mobil Production Nigeria Unlimited V. Monokpo (2003) 18 NWLR (Pt. 852) 346 @ pp. 430 – 431. –PER B. A. GEORGEWILL, J.C.A

 

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WHETHER THE PENDENCY OF AN APPEAL CAN OPERATE AS RES JUDICATA

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“Let me start with the decision of this Court, since at common parlance it is said ‘charity begins at home’. In Owonikoko V. Arowosaiye (1997) 10 NWLR (Pt. 288) 61 @ p. 75, this Court held inter alia thus:

“The law is that a judgment which is already on appeal is no longer final as it is possible of being set aside or nullified on appeal thereby rendering it inoperative as a basis for the defense of estoppel”

Let me now proceed to the decision of the Apex Court, which is final for all purposes. In Olukoya V. Fatunde (1996) 7 NWLR (Pt. 462)1, the Supreme Court had pronounced with finality inter alia thus:

“Where there is an appeal against a judgment relied upon for the purpose of sustain the plea of res judicata or issue estoppel, there is a possibility of the judgment being nullified if appeal is allowed. A judgment which has been nullified cannot be relied upon for a plea of res judicata”

In the circumstances therefore, what if I may ask is the finality in the judgment of M. H. Kurya J., which both parties to it are appealing against by way of Appeal and leave to Cross – Appeal, hanging over it like the ‘sword of Damocles’? None I can see! It cannot therefore, operate as res – judicata in the circumstances of this appeal, and I so firmly hold. See Olukoya V. Fatunde (1996) 7 NWLR (Pt. 462)1. See also Owonikoko V. Arowosaiye (1997) 10 NWLR (Pt. 288) 61 @ p. 75. –PER B. A. GEORGEWILL, J.C.A

 

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DUTY OF A DEBTOR TO REPAY A LOAN GRANTED HIM BY THE BANK

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The 1st Appellant as well as the other Appellants were under both a moral and legal duty and obligation to repay the debt of the 1st Appellant to the 1st Respondent See FCMB V. Rophine (Nig) Ltd & Anor (2017) LPELR – 42704 (CA),where this Court per Garba JCA (as he then was, but now JSC) had reiterated inter alia thus:

“A Debtor who benefited from a loan or overdraft from a Bank has both the moral and legal duty and obligation, express or implied, to repay it as and when due.”

–PER B. A. GEORGEWILL, J.C.A

 

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INSTANCE WHEN THE DUTY OF AN APPELLATE COURT TO RE-EVALUATE EVIDENCE WILL NOT ARISE

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“Thus, unless and until the appellate Court comes to the conclusion that the trial Court had not carried out its duty of proper evaluation and ascription of probative value to the evidence before it, the duty of the appellate Court to re – evaluate the evidence on the printed records would not arise. See Woluchem V. Gudi (Supra). See also Michael Hausa V. The State (1994) 7 – 8 SC 144. See also Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574 @ p. 582; Prince Ugoh Michael V.  Access Bank Of Nigeria Plc.  (2017) LPELR – 41981(CA) per Georgewill, JCA”.-PER B. A. GEORGEWILL, J.C.A

 

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WHETHER AN ISSUE NOT RAISED FOR THE FIRST TIME ON APPEAL REQUIRES THE LEAVE OF COURT

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It was contended for the Respondents that this issue is being raised for the first time in this appeal and without the requisite leave of this Court and thus incompetent. In reply, the Appellants had contended that it was raised before the Court below and is therefore, not a fresh issue and thus no leave of Court was required. I have taken a calm look at the Counter affidavit of the Appellants and I can see the facts, on this issue was based, clearly in paragraphs 16, 17 and 18 of their Counter affidavit to the Originating Summons and deposed to by the 2nd Appellant at pages 443 – 444 in volume II of the Records of Appeal. I hold firmly therefore, that it is not a fresh issue being raised in this appeal to necessitate any leave of this Court as vehemently but erroneously contended by learned counsel for the 1st Respondent. See Ibrahim V. Lawal (2015) LPELR 24736 SC. See alsoMakanjuola V. Balogun (1989) 3 NWLR (Pt. 108) 192; Otapo V. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Forestry Research Institute of Nigeria V. Gold (2007) 11 NWLR (Pt. 1044) 1. –PER B. A. GEORGEWILL, J.C.A

 

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FACTS ADMITTED NEED NO PROOF

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“Now, if the Appellants say as in paragraph 22 of their Counter affidavit that they were not given any notice of the appointment of a Receiver by the 1st Respondent and the Respondents responded by saying that under the AMCON Act empowering them to appoint a Receiver for the 1st Appellant there is no provision for giving of Notice of appointment of Receiver to the 1st Appellant, I would think, and I so hold, that a response was required from the Appellants either by way of further counter affidavit or reply to further affidavit and having not done so, the Appellants are thereby deemed to have admitted those crucial and specific depositions of facts. Thus, it was not for the Court below, in my view, to supply the answer on behalf of the Appellants to hold that notice was required since on the state of the affidavit evidence of the parties, issues were not joined on it and the Appellants are deemed to have admitted the depositions in paragraphs 11 and 12 of the further affidavit of the Respondents. See MTN Nigeria Communications Limited V. Mundra Ventures (Nig) Ltd. (2016) LPELR – 40343 (CA),where this Court per Georgewill JCA, had reiterated inter alia thus:

“The law is that …any fact admitted by one party need not be proved by the other party, thus facts of which the parties do not dispute are taken as duly established and therefore, no onus lies on either party to further prove such facts on which the parties are agreed.”

See also Egbuna V. Egbuna (1989) 2 NWLR (Pt. 106) 773; Yahaya V. FRN (2007) 23 WRN 127. –PER B. A. GEORGEWILL, J.C.A

 

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INSTANCE WHEN AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF THE LOWER COURT

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“In law, where a trial Court, such as the Court below, had carried out proper evaluation of the unchallenged affidavit and documentary evidence of the Respondents and had arrived at correct findings on the principal indebtedness of the Appellant, less charges and interest, and had rightly entered judgment for the Respondents, it is not, and has never been, the duty of this Court to disturb correct findings of the trial Court, more so on clearly undisputed facts based on sound legal reasoning. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie JSC., had pronounced with finality on this issue, thus:

“An appellate court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate court does not interfere. It is only where the misdirection has caused the court to come to a wrong conclusion that the appellate court will interfere….”

See also Fagbenro V. Arobadi And Ors (2006) LPELR – 1227 (SC). See also Mogaji V. Odofin (1978) 4 S.C. 91; Odofin V. Ayoola (1984) 11 SC 72; Ezukwu V. Ukachukwu (2004) 17 NWLR (Pt. 902) 227.Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46. –PER B. A. GEORGEWILL, J.C.A

 

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WHERE THERE IS A SPECIFIC AND GENERAL PROVISION ON THE SAME SUNJECT MATTER, THE SPECIFIC PROVISION MUST APPLY

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“The AMCON Act does not make provision for giving notice of Appointment of a Receiver as provided for under the Companies and Allied Matters Act. The provisions of the AMCON Act will therefore prevail because the law is trite that where there are two provisions, one specific and the other general, covering the same subject matter, the specific provision must apply. See Araka Vs. Egbue (2003) 17 NWLR (PT. 849)1; Attorney-General, Kwara State Vs. Lawal (2018) 3 NWLR (PT. 1606)266; Schroeder Vs. Major Company Nigeria Limited (1989) 2 NWLR (PT. 101)1”. –PER F. A. OJO, J.C.A

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Asset Management Corporation Act, 2010

Companies and Allied Matters Act, LFN 2004 

Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Court of Appeal Rules 2016

 

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