CORAM

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Chioma Egondu Nwosu-Iheme Justice of the Supreme Court of Nigeria

Obande Festus Ogbuinya Justice of the Supreme Court of Nigeria

Habeeb Adewale Olumuyiwa Abiru Justice of the Supreme Court of Nigeria

PARTIES

HOMAN ENGINEERING COMPANY

APPELLANTS 

UGOBECKS WORLDWIDE SOLUTION LTD CHIEF UGOCHUBWU H. DIALA

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Respondents (formerly claimants) commenced an action against the Appellant under the Undefended List Procedure at the High Court for recovery of an outstanding debt of N32,921,720 representing the balance of the cost of chippings and hard core supplied and delivered to the Appellant at its road construction sites in Eberi Omuna and flow station Umuebule in Etche LGA, Rivers State.

The Respondents alleged that they had a business relationship with the Appellant where they supplied various construction materials, and the Appellant usually made payments within thirty days. However, for supplies made on April 30, 2012, June 11, 2012, and December 3, 2012, the Appellant failed to make complete payment despite acknowledging receipt of the supplies. The Appellant had paid only N1,500,000 of the total outstanding sum of N33,791,720, leaving a balance of N32,291,720.

When the Respondents’ creditors reported them to the Economic and Financial Crimes Commission (EFCC), the Appellant confirmed its indebtedness in a letter dated March 8, 2013, acknowledging a debt of N37,436,520 to the Respondents. Despite this admission and several demands, the Appellant refused to pay.

The Appellant was served with the writ of summons and other documents on December 17, 2015, with a hearing date set for January 18, 2016. The Appellant filed no notice of intention to defend, and on the hearing date, its counsel merely requested an adjournment, claiming he had just been instructed. The trial Court refused the adjournment and entered judgment for the Respondents.

The Appellant appealed to the Court of Appeal, filed numerous motions, but never pursued the substantive appeal. After three years of procedural maneuvering, the Appellant withdrew its record of appeal, which the Court of Appeal interpreted as withdrawing the entire appeal, leading to its dismissal. The Appellant then appealed to the Supreme Court.

HELD

1. The appeal was dismissed for being an abuse of court process.

2. The Supreme Court held that the appeal was filed in bad faith and constituted an abuse of the judicial process, as the Appellant had never disputed its indebtedness to the Respondents but had spent eight years frustrating the administration of justice through technical and spurious applications.

3. The decision of the trial Court in the judgment delivered in Suit No. OHC/41/2015 on January 18, 2016, was reiterated.

4. The Appellant was ordered to pay costs of N5 million to the Respondents.

ISSUES

1. Whether the Court of Appeal breached the Appellant’s right to fair hearing when it dismissed the Appellant’s appeal without hearing the Appellant’s application filed on January 29, 2019?

2. Whether the Court of Appeal wrongly dismissed the Appellant’s appeal when the Appellant had a valid notice of appeal and an application seeking an order deeming the record of appeal transmitted on August 15, 2018, as the proper record of appeal?

3. Whether the Court of Appeal wrongly dismissed the Appellant’s appeal pursuant to Order 11 Rule 5 of the Court of Appeal Rules 2016 in the absence of a notice indicating that the Appellant was not willing to prosecute the appeal?

4. Whether the Court of Appeal had jurisdiction to dismiss the Appellant’s appeal in the absence of a valid record of appeal?

RATIONES DECIDENDI

ABUSE OF COURT PROCESS — NATURE AND CONSEQUENCES OF ABUSE OF COURT PROCESS

It is apparent from the attitude of the Appellant in the lower Court that it did not commence the appeal bona fide and that it improperly employed the judicial process of appeal to harass, irritate, intimidate, oppress and annoy the Respondents and to interfere with and take the entire administration of justice system for a ride. The appeal was a clear case of abuse and misuse of the process of Court. — Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

RIGHT OF ACCESS TO COURTS — REQUIREMENT OF GOOD FAITH IN EXERCISING RIGHT OF ACCESS

The law is that, although every person as citizen has a right of access to the Court for redress, that right should be exercised in good faith. Okafor Vs Attorney-General of Anambra State (1991) 6 NWLR (Pt 200) 659, Saraki Vs Kotoye (1992) 9 NWLR (Pt 264) 156, Owonikoko Vs Arowosaiye (1997) 10 NWLR (Pt 523) 61. It is obvious that the appeal commenced by the Appellant in the lower Court was done in bad faith and this further appeal is a protraction and elongation of the bad faith and a continuation of the abuse of Court process. –– Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

DISMISSAL OF PERVERSE ACTIONS — DUTY OF COURT TO DISMISS ACTIONS BROUGHT IN BAD FAITH

This appeal ought not to have been entertained by this Court and having been entertained, it is undeserving of any consideration by the Court. It merits an order of outright dismissal. It is trite that once it becomes clear to the Court that an action has been brought in bad faith and in utter disregard for and abuse of its processes, the proper thing to do is to at once dismiss the offensive and perverse action, without much ado.– Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C

PURPOSE OF COURTS — COURTS EXIST TO DO JUSTICE

Before concluding this appeal, it is necessary to reiterate that Courts exist to do justice, (emphasis added) to guarantee liberty, to enhance social order, to resolve disputes, to maintain rule of law, to provide for equal protection, and to ensure due process of law. Justice is defined as a scheme or system of law in which every person receives his due from the system, including all rights, both natural and legal within a reasonable time. –– Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

JUSTICE DELAYED IS JUSTICE DENIED — IMPORTANCE OF TIMELY JUSTICE

The aphorism ‘justice delayed is justice denied’ was developed by reason of happenings of the nature that has taken place in this matter. Cases like this cannot engender public confidence in our justice system. We must never lose sight of the fact that justice is rooted in public confidence and it is essential to social order and security. It is the bond of society and the cornerstone of human togetherness. –– Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

PROFESSIONAL DUTY OF LAWYERS — OBLIGATION TO UPHOLD THE DIGNITY OF THE JUSTICE SYSTEM

Lawyers as operators of the administration of justice system owe a duty, to the society that nurtured them and made them what they are, to ensure that they conduct their activities in a manner that edifies and brings honor, respect and belief to the justice system. They should not allow themselves to be used by litigants to bring the justice system into disrepute. — Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

SPORTING THEORY OF JUSTICE — CRITICISM OF SACRIFICING SUBSTANTIAL JUSTICE ON THE ALTAR OF CONTENTIOUS PROCEDURE

The scenario in this matter brings to mind the criticism leveled by Roscoe Pound against the American administration of justice system in 1906 for sacrificing substantial justice on the altar of contentious procedure, which he described as ‘the sporting theory of justice’.”– Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

DEFINITION OF ABUSE OF PROCESS — IMPROPER USE OF JUDICIAL PROCESS

In Ogboru Vs Uduaghan (2013) 13 NWLR (Pt 1370) 33, this Court stated that abuse of process is the improper and tortuous use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’s scope. In Nwosu Vs Peoples Democratic Party (2018) 14 NWLR (Pt 1640) 532, this Court reiterated that: ‘The employment of judicial process is regarded as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent. The common denominator with the concept of abuse of Court process is the improper use of the judicial process in litigation to interfere with the due administration of justice.’– Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

CONCURRENT FINDINGS OF FACT — ATTITUDE OF SUPREME COURT TOWARD CONCURRENT FINDINGS OF LOWER COURTS

The attitude of the Supreme Court to concurrent findings of lower Courts is that it will not interfere with such findings where the findings are reasonably justified and supported by evidence and where no special circumstances why the Supreme Court should interfere with the findings is shown, or where there is substantial error apparent in the record of proceedings, such as miscarriage of justice or violation of some principles of law or procedure. — Per UWANI MUSA ABBA AJI, J.S.C.

REQUIREMENTS FOR DEFENDING UNDEFENDED LIST ACTIONS — NOTICE OF INTENTION TO DEFEND

By the Rules of the trial Court, the Appellant, if desirous of defending the action, was expected to file a notice of intention to defend together with an affidavit disclosing a defence not less than five days before the date fixed for hearing. The Appellant filed no such process and/or processes. — Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

CERTIFICATION OF PUBLIC DOCUMENTS ATTACHED TO AFFIDAVITS — ADMISSIBILITY OF UNCERTIFIED PUBLIC DOCUMENTS

The Courts had decided prior to 2016 in several decisions that copies of public documents attached to an affidavit as exhibits needed not be certified true copies because the documents already formed a part of the evidence adduced by the deponent before the Court, and were available for the Court to use once it was satisfied that they were credible.” — Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

REQUIREMENT OF STAMP AND SEAL ON COURT PROCESSES — DIRECTORY, NOT MANDATORY NATURE

This Court decided in 2015 in the cases of Mega Peoples Party Vs Independent National Electoral Commission (2015) 18 NWLR (Pt 1491) 207 and Yaki Vs Bagudu (2015) 18 NWLR (Pt 1491) 288 that the regulation to affix stamp and seal on Court processes was not mandatory, but directory and that, at the worst, it rendered the process voidable and not void.” — Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

PUBLIC CONFIDENCE IN THE JUSTICE SYSTEM — CONSEQUENCES OF LOSS OF CONFIDENCE

Justice is rooted in public confidence and it is essential to social order and security. It is the bond of society and the cornerstone of human togetherness. Justice is the condition in which the individual is able to identify with society, feel at one with it and accept its rulings. The moment members of the society lose confidence in the system of administration of justice, a descent to anarchy begins. — Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C.

CASES CITED

STATUTES REFERRED TO

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

2. Court of Appeal Rules 2016

3. High Court Rules of Rivers State

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