Legalpedia Citation: (2025-02) Legalpedia 40509 (SC)

In the Supreme Court of Nigeria

Mon Feb 10, 2025

Suit Number: SC.CV/552/2024(R)

CORAM

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Jummai Hannatu Sankey Justice of the Supreme Court of Nigeria

Moore Aseimo Abraham Adumein Justice of the Supreme Court of Nigeria

Obande Festus Ogbuinya Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar Justice of the Supreme Court of Nigeria

PARTIES

NIGERIA DEPOSIT INSURANCE CORPORATION

APPELLANTS

1. COWRIE BUSINESS SOLUTIONS LIMITED
2. UNION BANK OF NIGERIA PLC

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, JUDICIAL PROCESS, ABUSE OF COURT PROCESS, APPELLATE JURISDICTION, MULTIPLICITY OF ACTIONS, PRACTICE AND PROCEDURE, BANKING LAW, LIQUIDATION, COURT’S INHERENT JURISDICTION

SUMMARY OF FACTS

This case stems from the Central Bank of Nigeria’s revocation of banking licenses of 14 banks on January 16, 2006, including Fortune International Bank Plc (FIB), for failing to meet the N25 Billion minimum capital base requirement. The Nigeria Deposit Insurance Corporation (NDIC) was appointed as the provisional liquidator of FIB.

Prior to the license revocation, FIB had taken a loan of over two billion Naira from Union Bank Plc which it failed to liquidate. When NDIC attempted to take over the management of Fortune Towers (a property of FIB), Union Bank Plc and Cowrie Business Solutions Ltd resisted, prompting NDIC to file an action at the Federal High Court on May 31, 2011.

NDIC sought declarations that the disposition by sale or assignment of Fortune Towers by Union Bank to Cowrie Business Solutions in July 2007 was ineffectual, illegal, unlawful, null and void, as it formed part of the assets of FIB while winding-up proceedings were pending. NDIC also claimed the sale was void because Cowrie Business Solutions was not yet incorporated as a limited liability company at the time of the purported sale, and that the disposition violated the doctrine of lis pendens.

The Federal High Court’s judgment partly favored NDIC and partly favored Union Bank and Cowrie Business Solutions. Dissatisfied, NDIC appealed to the Court of Appeal, naming Union Bank and Cowrie Business Solutions as 1st and 2nd Respondents respectively. Later, NDIC filed a Notice of Discontinuance to withdraw the appeal against Cowrie Business Solutions, which the Court of Appeal granted on June 24, 2024.

Following this, Cowrie Business Solutions simultaneously pursued two legal actions: (1) at the Court of Appeal, an application seeking extension of time to file a Notice of Appeal against the Federal High Court’s judgment; and (2) at the Supreme Court, the present appeal seeking to be restored as the 2nd Respondent in NDIC’s appeal at the Court of Appeal. Additionally, Cowrie Business Solutions also had a pending action before the Lagos State High Court involving the same subject matter (Fortune Towers).

NDIC applied to the Supreme Court to dismiss or strike out Cowrie Business Solutions’ appeal for abuse of process, or alternatively for lack of diligent prosecution, or for accelerated hearing.

HELD

1. The appeal was dismissed.
2. The Court held that Cowrie Business Solutions’ filing of an appeal before the Supreme Court constituted an abuse of Court process, as it had simultaneously filed an application at the Court of Appeal seeking to cross-appeal and to deem the cross-appeal as duly filed, with both proceedings involving the same parties and subject matter.
3. The Court emphasized that a litigant has no right to simultaneously pursue two processes in different courts seeking the same effect, characterizing such practice as turning adjudication into a “game of chance” or “gamble.”
4. The Court exercised its inherent jurisdiction under Section 22 of the Supreme Court Act and Section 6(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to prevent abuse of its process.

ISSUES

1. Whether the present appeal is liable to be dismissed on account of being an abuse of Court process or in the alternative set the appeal down for immediate hearing and disposal?

RATIONES DECIDENDI

ABUSE OF COURT PROCESS – MEANING AND CIRCUMSTANCES CONSTITUTING ABUSE OF COURT PROCESS

The law is trite as laid down in the locus classicus Saraki V Kotoye (1992) 9 NWLR (Pt. 264) 156 that an abuse of Court process arises in the following situations: (i) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue; or (ii) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds; or (iii) Where two similar processes are used in respect of the exercise of the same right such as a cross appeal and a respondent’s notice. Thus, the term “abuse of Court process” involves, among other things, the improper use of the judicial process by a party to a suit to interfere with the due administration of justice or to the irritation and annoyance of his opponent, or to harass, et cetera.” – Per JUMMAI HANNATU SANKEY, J.S.C.

SIMULTANEOUS PURSUIT OF TWO PROCEEDINGS IN DIFFERENT COURTS – PROHIBITION AGAINST PURSUING THE SAME MATTER IN TWO COURTS SIMULTANEOUSLY

In the instant case, based on the evidence both affidavit and documentary, placed before the Court, the 1st Respondent/Appellant having filed an application before the Court of Appeal seeking to cross appeal and to deem the cross appeal as duly filed, has abused the process of this Court by simultaneously filing an appeal before this Court seeking to restore his name to the Appeal before the Court below. I do so find. – Per JUMMAI HANNATU SANKEY, J.S.C.

LITIGATION NOT A GAME OF CHESS – PROHIBITION AGAINST PURSUING SAME MATTER SIMULTANEOUSLY IN DIFFERENT COURTS

A litigant has no right to pursue pari passu two processes which will have the same effect in two Courts at the same time, with a view to obtaining victory in one of the processes or In both. Litigation Is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricks.– Per JUMMAI HANNATU SANKEY, J.S.C.

PROHIBITION AGAINST TURNING ADJUDICATION INTO A GAME OF CHANCE – CONDEMNATION OF ABUSE OF COURT PROCESS

This is because the intention of the party found engaging in such a practice is clearly to attempt to pull the wool over the eyes of both Courts where processes are separately and surreptitiously filed, involving the same parties and the same subject matter, in the hope that where one matter is lost, another may be won. This is nothing but an attempt to turn the serious business of adjudication based on processes filed before the Court into a game of chance or a gamble, otherwise referred to in Nigerian parlance as a game of ‘kalo kalo’. – Per JUMMAI HANNATU SANKEY, J.S.C.

CONSEQUENCES OF ABUSE OF COURT PROCESS – DISMISSAL OF CASE

This practice shall always be strongly discouraged as it amounts to a flagrant abuse of Court process, as well as being a factor in congestion of cases before the already overworked Courts. Such a matter which amounts to an abuse must be promptly terminated and brought to a sharp halt, and further penalised with a summary dismissal.– Per JUMMAI HANNATU SANKEY, J.S.C.

COURT’S INHERENT JURISDICTION TO PREVENT ABUSE OF PROCESS – POWER TO DISMISS ABUSIVE PROCEEDINGS

Consequently, pursuant to the inherent jurisdiction of this Court under the combined provisions of Section 22 of the Supreme Court Act and Section 6(6)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to prevent an abuse of its process, this Appeal No: SC/CV/552/2024 between Cowrie Business Solutions Limited V Nigeria Deposit Insurance Corporation & Union Bank Plc, is hereby dismissed. – Per JUMMAI HANNATU SANKEY, J.S.C.

CONCEPT OF ABUSE OF JUDICIAL PROCESS – NATURE AND INDEFINITE CHARACTER

It is now settled that the concept, principle or theory of abuse of judicial process is indefinite or imprecise, as it depends on circumstances, facts and situations which vary from case to case. – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

ABUSE OF COURT PROCESS – PERVERSION OF JUDICIAL SYSTEM

The concept of abuse of Court or judicial process, denotes a perversion of the system by the use of a lawful procedure for the attainment of unlawful results. Abuse of judicial process manifests itself largely in the multiplicity of actions on the same subject matter between the same parties. It is not the existence of the right to institute these actions that is protested against, rather, it is the manner of exercise of this right and the purpose of doing same that is abhorred. – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

PUBLIC POLICY BASIS FOR PROHIBITION AGAINST ABUSE OF COURT PROCESS

It is a rule of public policy based on the maxim; ‘interest republicate ut sit finis litium’, – it is in the public interest, that a litigation, shall come to an end or there must in the public interest, that a litigation, shall come to an end or there must in the public interest, be an end to litigation. – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

PUBLIC POLICY AGAINST DOUBLE JEOPARDY – PROHIBITION AGAINST DEFENDING SAME CAUSE TWICE

I only wish to add that the principle of abuse of Court or judicial process is also rooted in the public policy expressed in the maxim: ‘Nemo Debet Bis Vexari Pro Una et Eadem Causa’, which means; ‘No one should be subjected to defend the same cause twice.’ – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

LEGAL STATUS OF CROSS-APPEAL – CROSS-APPEAL AS INDEPENDENT APPEAL

In this case, since the Appellant/Respondent has a pending application to cross appeal and to deem its cross appeal as duly filed in the Court of Appeal, its concurrent or simultaneous appeal in this Court, on the same matter and against the same parties, constitutes a clear abuse of Court process. This is because the law treats a cross-appeal as an independent appeal, with a life of its own – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

COURT’S DUTY TO ABORT ABUSIVE PROCEEDINGS – DISMISSAL AS APPROPRIATE REMEDY

Where there is an abuse of Court process, the action or process that is latter in time vacates the temple of justice. The law commands the Courts, which husband their jurisdiction jealously, to abort, in its embryo, the life span of any matter that displays any ounce of an abuse of Court process and accord it a decent burial with a deserved penalty of dismissal. – Per OBANDE FESTUS OGBUINYA, J.S.C.

ADMISSION OF FACTS – PROOF UNNECESSARY FOR ADMITTED FACTS

Since the 1st Respondent in his counter affidavit has basically admitted to the existence of the series of actions before the Federal High Court Lagos, the Court of Appeal, Lagos Division, and before this Court, it becomes an admitted fact which requires no further proof.– Per JUMMAI HANNATU SANKEY, J.S.C.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Supreme Court Act
3. Banks and other Financial Institutions Act (BOFIA)

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