CORAM
PARTIES
HONEYWELL FLOUR MILLS PLC (RC. NO. 55495) APPELLANTS
ECOBANK NIGERIA LTD (RC. NO. 89773) RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
Following disagreements between the parties and other sister companies to the Appellant, they had commenced an action against the Respondent praying for an order of maintenance of status quo by the parties. In response, the Respondent filed its Statement of Defence. However, despite this pending suit between the parties, the Respondent proceeded to file a Winding – Up Petition against the Appellant along with a Motion Ex – parte seeking five orders against the Appellant, which application was refused by the Court below, which further directed the Respondent to put the Appellant on notice and subsequently adjourned the proceedings. Rather than putting the Appellant on notice as directed, the Respondent filed a subsequent Winding – Up Petition against the Appellant in another suit over the same subject matter as in the earlier Petition along with another Motion Ex – parte, which application was granted. Upon service, the Appellant filed a Motion on Notice praying the Court below to discharge the Ex – parte orders and to also dismiss the second Petition on the grounds of abuse of court process, amongst others, which application the Court in its ruling declined to vacate all the Ex – parte orders and also refused to strike out and/or dismiss the Respondent’s Petition, hence an appeal to this Court against the ruling of the Court below.
HELD
Appeal Allowed
ISSUES
Whether on the state of the facts and processes filed before the Court below the Respondent’s Petition filed on 9/11/2015 against the Appellant constituted an abuse of Court process and ought to have been dismissed by the Court below?
RATIONES DECIDENDI
ABUSE OF COURT PROCESS – DEFINITION OF ABUSE OF COURT PROCESS
“Now, the term ‘abuse of court process’ is often seen to be synonymous with multiplicity of suits, 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 multiplicity of suits 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, 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. This is rightly and arguably so because what would constitute or amount to abuse of court process is very diverse, imprecise and thus subject to infinite or indefinite considerations.”
ABUSE OF COURT PROCESS – FACTORS TO CONSIDER IN DETERMINING WHETHER AN ACTION CONSTITUTES AN ABUSE OF COURT PROCESS
“In considering whether or not an action 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 affected 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 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; Umeh V.Iwu (2008) 8 NWLR (Pt. 1089) 225.”
ABUSE OF COURT PROCESS – WHAT CONSTITUTE AN ABUSE OF COURT PROCESS?
“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 or amount or give rise to 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.”
ABUSE OF COURT PROCESS – ELEMENTS THAT WOULD CONSTITUTE ABUSE OF COURT PROCESS
“I have calmly scrutinized the entirety of the pleadings, subject matter, issues and parties in this appeal and the parties in the three other suits between the parties still pending before the Court below. I have also averted my mind sufficiently to the basis or essential elements that would constitute abuse of court process as concisely and precisely stated in Ogoejeofo V. Ogoejeofo (2006) 3NWLR (Pt. 966)205 SC, to wit:
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.”-
ALLEGATION OF ABUSE OF COURT PROCESS – MODE OF PROVING AN ALLEGATION OF ABUSE OF COURT PROCESS
“In law an allegation of abuse of court process is a very serious allegation, which 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. However, where such facts are not apparent on the face of the processes filed, then it is incumbent on the party so alleging to place before the Court, mostly by way of affidavit evidence, the material sufficient enough to warrant the finding of an abuse of court process in his favor against the other party, failing which such an allegation is taken as unproved and such an objection must fail. For a suit to constitute an abuse of court process, though the circumstances are varied and infinite, it must be shown in what way or manner it constituted an abuse of court process by the party so alleging. It is not such an allegation that a party would make and then fold his hands to see how the other party wriggles out of it. The law is simple and very trite he who alleges must prove what he alleges except where the other party admits the allegation of facts. Thus, all facts on which the parties are ad idem are taken as duly established without the need for any further proof thereof. This has been the settled position of the law and this Court has always reiterated this position in a plethora of its judgment. See MTN Nigeria Communications Limited V. Mundra Ventures (Nig) Ltd. (2016) LPELR – 40343 (CA), were 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 Smurfit Ltd V. M.V. Gongola Hope (20020 22 WRN 30. See also Salano V. Olusanya & Ors. (1975) 1 SC 55; Balogun V. Egba Onikolobo Community Bank (Nig.) Ltd. (2007) 5 NWLR (Pt. 1028) 584; Hon Zubairu & Anor. V. Iliasu Mohammed & Ors. (2009) LPELR – 5124 (CA).”
See also Alagbe V. Abimbola (1978) 2 SC 39. See also Egbuna V. Egbuna (1989) 2 NWLR (Pt. 106) 773; Yahaya V. FRN (2007) 23 WRN 127.”
ACTION, COURT, ABUSE OF JUDICIAL PROCESS – CONCEPT OF ABUSE OF JUDICIAL PROCESS
“In law, a subsequent suit such as Suit No. FHC/L/CP/1689/2015: Ecobank Nigeria Ltd V. Honeywell Flour Mills Plc premised on such faulty foundation and merely intended to, and had indeed achieved, the wasting of the time and resources of the Appellant, is one which is nothing but a process in want of bona fide and thus constitutes an abuse of the process of court, which to all intents and purpose was not meant to serve any useful purpose and was indeed dead on arrival and I therefore un – hesitantly so pronounce it dead on arrival, a pronouncement which the Court below had shied away from making but which it ought to have made. 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.”
In the eyes of the law, and indeed in my own eyes too, therefore a process initiated in abuse of the process of court is one devoid of any competence or life and thus ought to be terminated by the Court, even in limine if so called upon by the party being put through the unenviable task of defending such a process steeped in such mala fide and in abuse of the process of court. See Ntuks V. NPA (2007) 130 NWLR (Pt. 1051) 392 @ pp. 419 – 420, where it was stated firmly inter alia that:
“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation merely to waste valuable litigation time…..The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness”
PETITION FOR WINDING UP – ATTITUDE OF THE COURT WHEN A PETITION FOR WINDING UP IS INSTITUTED CONCURRENTLY IN TWO DIFFERENT COURT
“Now, the right of the Respondent ordinarily, if there is absence of any intention to abuse the process of court, to institute an action by way of Petition for winding – up of the Appellant on account of insolvency or inability of the Appellant to pay its debt to the Respondent is one which in law is distinct from an action for recovery of debt or for damages for breach of contract and is therefore, one which is unaffected by another suit seeking recovery of debt or damages for breach of contract. This is the settled position of the law as was reechoed as well as reiterated in Tate Industries Plc V. Devcom MB Ltd (2004) 17 NWLR (Pt. 901) 200 @ p. 219, where it was held inter alia thus:
“A Petition for Winding – Up of a company on the ground of inability to pay a debt must be distinguished from an ordinary claim for recovery of debt or that of breach of contract. The relief sought in a Winding-Up Petition is not one for recovery of debt or that of breach of contract but one for Winding-Up on account of insolvency or inability to pay debt.”
However, although the right to apply by way of Petition for the winding – up of the Appellant on account of insolvency or inability of the Appellant to pay its debt to the Respondent is a right guaranteed to the Respondent by law in proper, appropriate and deserving circumstances, but the Respondent cannot do so in abuse of the process of court whereby it institutes concurrently in two different courts two Petitions for the same purpose of winding – up of the Appellant and thereby clearly engaging in forum shopping in its quest to wound – up the Appellant. Any such attempt would be halted by the Court if so called upon by the Appellant since no Court worth its salt would allow its process to be abused and used as an engine of bad faith to merely annoy and irritate another party. See Adesanoye V. Adewole (2000) 9 NWLR (Pt 671) 127 @ p. l52.”
ALLEGATION OF ABUSE OF COURT PROCESS – ATTITUDE OF THE COURT TO A NOTICE OF DISCONTINUANCE IN AN ALLEGATION OF ABUSE OF COURT PROCESS
“In Olawore V. Olanrewaju (1998) 1 NWLR (Pt. 534) 436, this Court was faced with a similar scenario of the presence of a notice of discontinuance in an allegation of abuse of court process and this is was what this Court had to say inter alia @ p. 455 per Aloma Mukhtar JCA (as he then was, and later CJN) thus:
“I hold that it is an abuse of court process in this case for the Plaintiff to file a notice of discontinuance so that they may have their way in the new Suit No. HOY/32/85…I hope learned counsel for the Plaintiffs will advise his clients accordingly to obviate this flagrant abuse of judicial process of the Court in future.”
PERVERSE DECISION – WHEN IS A DECISION SAID TO BE PERVERSE?
“In law, a decision of a Court found to be perverse is liable to be set aside and the only palliative or purgatory for an erroneously perverse decision of a trial Court before an appellate Court is for it to be set aside. In Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307, it was emphatically pronounced inter alia thus:
“A decision is said to be perverse when it is speculative, not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law, and an Appellate court can interfere with a decision of the trial court that is perverse.”
See also Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1; Owhor V. Christopher (2010) All FWLR (Pt. 511) 962.”
ABUSE OF COURT PROCESS – PROPER ORDER TO BE MADE WHEN A SUIT CONSTITUTES AN ABUSE OF COURT PROCESS
“In law the proper order to be made is simply an order of dismissal to bring it to a definite end. There is no room for any sentiment when it comes to dealing with matters or actions initiated or steps taken in abuse of the process of Court. See African Reinsurance Corp. V. JDP Construction (Nig) Ltd (2003) 13 NWLR (PT 838) 609, where the Supreme Court laid this issue to rest on the proper order to be made when a suit or process constitutes and abuse of court process, when it held alia thus:
“Where the court comes to the conclusion that its process is abused, the proper Order is that of dismissal of the process”
This Court had also lent its voice to the devastating consequences on a suit found to be an abuse of the Court process in Dogari V. Waziri & Anor. (2016) LPELR – 40320 (CA) @ pp. 30 – 31, where it was reiterated inter alia thus:
“No matter how meritorious the case of a party may be once it is found to be an abuse of the court processes that is the end of the matter. It becomes a closed chapter and the end of the road for such a matter instituted in abuse of the process of court…..”
See also Dingyadi & Anor V. INEC &Ors. (2011) LPELR – 950 (SC) @ pp. 38 – 39; Ogbonmwan V. Aghimien (2016) LPELR – 40806 (CA) @ p. 22.”
CASES CITED
STATUTES REFERRED TO
None|
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