CORAM

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Yargata Byenchit Nimpar Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

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PARTIES

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ECOBANK NIGERIA PLC

APPELLANTS 

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1. BUKAS KASMAL INTERNATIONAL LIMITED

2. GOVERNOR OF LAGOS STATE

3. ATTORNEY-GENERAL OF LAGOS STATE

4. INSPECTOR GENERAL OF POLICE

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL PROCEDURE, CONSTITUTIONAL LAW, FAIR HEARING, JURISDICTION, ORIGINATING PROCESS, LOCUS STANDI, ABUSE OF COURT PROCESS, EVIDENCE, PRACTICE AND PROCEDURE, LAND LAW, CONTRACT, FRAUD

 

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SUMMARY OF FACTS

The 1st Respondent had commenced an action by means of an Originating Summons before the Court below claiming against the Appellant and the 2nd – 4th Respondents as Defendants. The 1st Respondent sought declarations that two Deeds of Assignment dated 8th January 2011 between the Claimant and Oceanic Bank Plc (now Ecobank Nigeria Limited) in respect of land at Ogombo Village, Eti Osa Local Government Area of Lagos State were invalidated by substantial fraudulent misrepresentation and therefore null and void.

The 1st Respondent contended that the actual price of the landed property was a cumulative figure of N4,300,000,000.00, but discovered that the cumulative contract price stated in the two Deeds had been “tampered with and adjusted down” to a cumulative figure of N150,000,000.00. The 1st Respondent believed that the Appellant had fraudulently tampered with the documents and fraudulently misrepresented same to the 2nd and 3rd Respondents, which act of deliberate fraudulent misrepresentation had invalidated the two Deeds.

Upon service, the Appellant filed a Motion on Notice praying for the striking out of the Originating Summons on grounds that it was not endorsed for service outside Lagos State as required by law. The Appellant also filed a Notice of Preliminary Objection praying the Court to dismiss and/or strike out the Originating Summons on grounds that it was improperly constituted, contained non-justiciable reliefs, and constituted an abuse of Court process. The 2nd & 3rd Respondents also filed a Notice of Preliminary Objection praying the Court to dismiss the Originating Summons on the ground that it was incompetent.

When the matter came up before the Court below on 11/12/2013, the 1st Respondent’s Counsel withdrew its claim against the 4th Respondent and applied to the Court to hear both the Originating Summons and the Objections together. The Appellant’s counsel opposed this application, requesting an adjournment to file processes in opposition to the Originating Summons. The Court below refused the adjournment and proceeded to hear both the objections and the Originating Summons together.

On 27/1/2014, the Court below delivered its judgment dismissing the preliminary applications and entering judgment in favor of the 1st Respondent against the Appellant and the 2nd & 3rd Respondents. The Appellant and the 2nd & 3rd Respondents, dissatisfied with the judgment, appealed to the Court of Appeal.

 

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HELD

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1. The appeal was allowed.

2. The cross-appeal was also allowed.

3. The judgment of the High Court of Lagos State delivered on 27/1/2014 was set aside for being a nullity.

4. The Court held that the Appellant was denied its right to fair hearing by the Court below’s refusal to grant an adjournment.

5. The Court further held that the Originating Summons procedure employed by the 1st Respondent in initiating an action involving allegations of fraud and substantial dispute of facts was grossly improper, as it ought to have been commenced by means of a Writ of Summons.

6. The suit was remitted to the Hon. Chief Judge of Lagos State for reassignment to another judge for expeditious hearing and determination according to law on pleadings and evidence of the parties.

7. No order was made as to costs.

 

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ISSUES

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1. Whether the Respondent has the locus standi to institute the suit against the Appellant at the lower Court, which suit is an abuse of Court process?

2. Whether the lower Court was right to dismiss the Objections in the manner it did especially when it failed to properly consider all the issues raised in the Objections?

3. Whether the lower Court was wrong and in breach of the Appellant’s right to fair hearing when at the proceedings of December 11, 2013 it refused the Appellant’s application for an adjournment and denied the Appellant the opportunity of filing a Counter-Affidavit in opposition to the Originating Summons?

4. Whether the lower Court was right when it relied only on the 1st Respondent’s affidavit evidence in support of the 1st Respondent’s Originating Summons in entering Judgment in favor of the 1st Respondent and against the Appellant without evaluating the said affidavit evidence?

5. Whether the lower Court was right when it declared the Deeds invalid, null and void and set them aside at the instance of the 1st Respondent who had taken the benefit of the transactions consummated by the Deeds?

For the Cross Appeal:

Whether the Originating Summons and Affidavit in Support containing allegations of fraud ought to have been heard by the Court below in view of Order 3 Rule 1(b) Lagos State High Court (Civil Procedure Rules) 2012?

 

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RATIONES DECIDENDI

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LOCUS STANDI – DETERMINATION OF LOCUS STANDI BASED ON THE CLAIMANT’S CASE

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I have taken a calm but critical look at the depositions in the affidavit of the 1st Respondent in support of the Originating Summons and the preliminary objections of both the Appellant and the 2nd – 3rd Respondents before the Court below and it does appear to me that the Appellant was truly confusing the issue of the merit or reasonableness of the claims of the 1st Respondent with the issue of his locus standi to even initiate the action, which are indeed two different issues all together. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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LOCUS STANDI – CONCEPT OF LOCUS STANDI AS A THRESHOLD MATTER

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It needs to be pointed out at once that in law the concept of locus standi is a threshold one and denotes the right standing of a person to sue over a wrong allegedly done to him. It is thus the totality of the right conferred on a person who approaches a Court to seek remedy to have the right standing to seek particular remedy.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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LOCUS STANDI – IMPORTANCE OF LOCUS STANDI IN LITIGATION

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So crucial and of utmost importance is the issue of locus standi that it has over the years attained the level of a jurisdictional status in the litigation battlefield and thus can be raised at any stage of the proceedings either before or after pleadings are delivered and exchanged or on the pleadings of the Claimant alone.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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ABUSE OF COURT PROCESS – WHAT CONSTITUTES ABUSE OF COURT PROCESS

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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. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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ABUSE OF COURT PROCESS – BURDEN OF PROOF ON PARTY ALLEGING ABUSE OF COURT PROCESS

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The allegation of abuse of Court process is a serious allegation and must be established by the person so alleging with sufficient materials before the Court before which the allegation is made. The sufficient material need not be an affidavit if on the face of the processes filed it is obvious that the party by his own showing is guilty of abusing the process of the Court.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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RIGHT TO FAIR HEARING – DENIAL OF OPPORTUNITY TO FILE COUNTER-AFFIDAVIT

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On the strength of the evidence of what had transpired on 11/12/2013 before the Court below, and considering the chequered history of the series of adjournments at the instance of the Court below, I find that the refusal of the Appellant’s application for adjournment and proceeding to hearing the originating summons on the affidavit evidence of the 1st Respondent alone was a capricious and injudicious exercise of discretion by the Court below and amounted clearly to an infringement of the Appellant’s right to fair hearing.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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RIGHT TO FAIR HEARING – EFFECT OF BREACH ON PROCEEDINGS AND JUDGMENT

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The law is now well settled that failure of a Court, such as the Court below in the instant appeal, to observe the right to fair hearing of a party in any proceedings before it, vitiates both the proceedings and the resultant judgment of the Court whose proceedings is afflicted by the deadly, incurable and highly contagious virus of denial of fair hearing and this is notwithstanding the merit or otherwise of the respective cases of the parties or indeed how meticulous the proceedings were or even how sound the resultant judgment is, they are all a nullity. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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RIGHT TO FAIR HEARING – FUNDAMENTAL NATURE OF FAIR HEARING

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The right to fair hearing is sacrosanct and therefore, cannot be lightly disregarded or discarded by the Court. It is indeed one of the pillars on which the concept of justice and fairness is built. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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ADJOURNMENT – BALANCING SPEEDY TRIAL WITH FAIR HEARING

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My lords, while it is a truism as it a common parlance cliche’ that ‘Justice delayed is justice denied’ yet ‘justice rushed is justice crushed’ and thus it would indeed be a travesty of justice to rush justice in breach of the enshrined constitutional guaranteed right of the citizen to fair hearing, to be fairly heard before decision affecting his civil rights and obligations are reached by the Court. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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ORIGINATING SUMMONS – IMPROPRIETY OF ORIGINATING SUMMONS FOR MATTERS INVOLVING SUBSTANTIAL DISPUTE OF FACTS

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I hold that there were substantial dispute of facts coupled with allegations of fraud, of which particulars were not even set out as required by law, between the parties on the strength of the affidavit evidence placed before the Court below by the 1st Cross Respondent itself and thus the originating summon procedure by which the suit was commenced by the 1st Cross Respondent was completely and irredeemably improper. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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ORIGINATING SUMMONS – LIMITED SCOPE OF ORIGINATING SUMMONS PROCEDURE

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In law, the Originating Summons procedure is limited in its scope of use and should not be adopted in proceedings in which there are substantial disputes of facts, It should never be resorted to in cases where there are controversies and a lot of disputed facts between the parties. In such cases, a claimant should approach the Court by way of a writ of summons, which will allow each side to file pleadings and sort out the issues in dispute between them at full trial.” – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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FRAUD – REQUIREMENT FOR SPECIFIC PLEADING OF FRAUD

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In law, an allegation of fraud requires that the particulars of fraud be set out to confer any modicum of seriousness on such an allegation of fraud to warrant further enquiry into it by the Court below. In other words, unless and until an allegation of fraud is expressly made and supported by its particulars it is a non-starter as in law mere or bare or banal allegation of fraud, no matter how grave, is of no moment if it is not supported by the relevant particulars as required by law.– Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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FRAUD – STANDARD OF PROOF FOR ALLEGATIONS OF FRAUD

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Allegations of fraud, misrepresentation and forgery, which are allegations being criminal in nature and central to the claims of the 1st Cross Respondent must be proved beyond reasonable doubt even in a civil proceedings and thus suitable for proceedings commenced by means of Writ of Summons. – Per BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act 2011

3. Sheriffs and Civil Process Act

4. Federal Inland Revenue (Establishment) Act

5. Taxes and Levies (Approved List for Collection) Act, 1998

6. Lagos State High Court (Civil Procedure) Rules 2012

7. Court of Appeal Rules, 2011

8. Land Use Act

 

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