AFRICAN CONTINENTAL BANK PLC V DAMIAN IKECHUKWU NWAIGWE & 2 ORS

CORAM

WALTER SAMUEL NKANU ONNOGHJEN, JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

PARTIES

AFRICAN CONTINENTAL BANK PLC APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

While an appeal was pending, appellant applied for leave to apply for an order of certiorari to issue to bring before the High Court the decision of an Upper Area Court for the purpose of being quashed which leave was granted but the substantive application was refused by the court. Appellant then filed an application before the High Court for leave to file additional grounds of appeal which resulted in the 1st respondent filing a preliminary objection contending that the appeal was in abuse of process in view of the application for an order of certiorari to quash the same decision, which objection was taken and upheld by the court and the appeal dismissed. Appellant was dissatisfied and appealed to the Court of Appeal, which dismissed same resulting in the instant further appeal.

HELD

Dismissing the appeal ?

ISSUES

1. Whether or not the appellant’s appeal to the High Court of Adamawa State sitting in its appellate jurisdiction amounts to an abuse of court process.2. Whether or not the prerogative writ/order of certiorari is an alternative to constitutional right of appeal.3. Whether or not the court below considered all the issues raised especially the issue of estoppel and whether the court was right in affirming the judgment of the High Court sitting on appeal

RATIONES DECIDENDI

CERTIORARI

Certiorari is an alternative remedy to any appeal and consequently both remedies cannot be resorted to by an aggrieved party simultaneously as was done in the instant case. To do so is a clear case of abuse of process of the court. Per Onnoghen JSC

JUDICIAL REVIEW

Judicial review is the supervisory jurisdiction of the High Court exercised in the review of the proceedings, decisions and acts of inferior courts and tribunals and acts of governmental bodies. The remedies available are for orders of mandamus, certiorari and prohibition and also the writ of Habeas corpus. In judicial review, the court is usually concerned with the legality and not with the merit of the proceedings, decisions or acts of the affected inferior court, tribunal or governmental body. Per Onnoghen JSC

ABUSE OF COURT PROCESS DEFINED

Abuse of court processes has been variously defined by this court over the years and includes a situation where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice. Where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and same subject matter or when the process of the court has not been used bona fide and properly. Per Onnoghen JSC

JURISDICTION

The jurisdiction of the High Court to quash the judgment, order or proceeding of an inferior tribunal on the face of the record is not an appellate jurisdiction. Per Onnoghen JSC

NATURE OF ABUSE OF COURT PROCESS

It is not the existence or pendency of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of court. Per Onnoghen JSC

JURISDICTION/CERTIORARI

The appellate jurisdiction of the High Court and its jurisdiction to award certiorari are two distinct and separate jurisdictions; therefore the absence or existence of a right of appeal or limitation of that right where it exists is irrelevant to the right of the High Court to issue certiorari. Per Onnoghen JSC

CASES CITED

Saraki vs. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188; Okorodudu vs. Okoromadu (1977) 3 S.C 21; Okafor vs. A-G Anambra State (1991) 6 NWLR (Pt. 200) 63 at 681;Nnana vs. Nwanebe (1991) 2 NWLR (Pt. 172) 181; C. O. P vs. Fasehan (1997) 9 NWLR (Pt. 507) 171; Olutinrin vs. Agaka (1998) 6NWLR (Pt. 554) 366.Adesokan vs. Adegorolu (1991) 3 NWLR (Pt.293) 297Re Umuolu Village Group Court, Ex Parte Macaulay, 20NLR III at 113Oredoyin vs. Arowolo (1989) 4 NWLR 172 at 211R V. Northymberland Compensation Appeal tribunal, Ex Parte Shaw (1952) 1 KB 338: RV Padington North and St. Marylebone Rent Tribunal Ex Parle Perry (1959) 1 QB 229R vs. District Officer, Ex Parle Atem (1961) ALL NLR 51

STATUTES REFERRED TO

High Court of (Civil Procedure) Rules of Adamawa State?

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