OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEAL
FREDRICK OZIAKPONO OHO JUSTICE, COURT OF APPEAL
ABDULLAHI MAHMUD BAYERO JUSTICE, COURT OF APPEAL
APPELLANTS
UNION BANK OF NIGERIA PLC. – RESPONDENT
RESPONDENTS
APPEAL, BANKING, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE
Before the lower court, the appellants were the claimants/defendants to counter-claim/applicants whilst the respondent was the defendant/counter-claimant/respondent.
The appellants are incorporated sister companies. The second appellant was a customer of the respondent, a banking financial institution, at its (respondent’s) Akure Main Branch, Ondo State. In 2010 and 2012, the respondent granted credit facilities to the second appellant to assist it in its produce and vegetable business. The second appellant’s factory and industrial property along Owo-Ikare Road, Owo, Ondo State were used as securities for the facilities. The first appellant’s property, situate at No. 47A and 47B, Glover Road, Ikoyi, Lagos State (the property/land), was used as an additional security for the credit facility of 2010 only, not for the one of 2012. The first appellant alleged that the 2010 credit facility was fully liquidated by the second appellant. The liquidation of the facility freed its mortgaged property of any encumbrance whatsoever but the respondent refused to surrender and release its title documents to it (the first appellant) despite repeated demands. Subsequently, the respondent sold the property, in the sum of N375M, to the Misa Nigeria Limited, which acted as a front for the respondent, for the second appellant’s failure to pay the 2012 credit facility which the first appellant did not guarantee nor its property used to secure it.
Sequel to that, the first appellant, besieged the lower court and tabled it’s claims against the respondent, Misa Nigeria Limited and the Registrar of Titles, Lagos State. Prior to that, the appellants had beseeched the High Court of Ondo State (the Akure lower court) in Suit No. Ak/198/2014 (the Akure Suit), wherein they claimed a legion of similar reliefs against the respondent and Misa Nigeria Limited. In reaction, the respondent, upon service of the processes of the lower court, joined issue with the first appellant and denied liability while alleging that the first appellant was liable because it guaranteed, as a principal or surety, the 2012 credit facility as a continuing security with its sold property.
Subsequently, the appellants filed a notice of preliminary objection wherein they prayed the lower court to dismiss the respondent’s Lagos counter-claim for being an abuse of court process but the Respondent opposed same. In a considered ruling the lower court dismissed the preliminary objection. The appellants were dissatisfied with the decision hence the instant appeal.
Appeal dismissed.
Ø Whether the counterclaim of the Respondent at the lower court is an abuse of court process in view of the counterclaim filed in Suit No: AK/198/2014?
The term “abuse of court process” is an elusive concept in the wide domain of litigation. It exhibits amorphous forms and is disobedient to one single definition. It has become a mantra in adjudication. It is usually mounted, as a shield, by a defending party to abort the life span of an action in its embryo. An abuse of court process is a polymorphous concept. It connotes the proper and improper use of judicial process by a party in litigation to interfer with due administration of justice. Generally, the employment of judicial process is only regarded as an abuse when a party improperly uses the issue of the judicial process to the irritation, harassment and annoyance of his adversary, the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. In essence, multiplication of actions on the same subject matter between the same parties, even where there exists a right to bring the action, is regarded as an abuse of court process. The abuse is located in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se, see Saraki v. Kotoye (1992) 11/12 SCNJ (Pt. 1) 26/(1992) 9 NWLR (Pt. 264) 156; CBN v. Ahmed (2001) 11 NWLR (Pt.7424) 369; Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392; Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154; Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347; Oyeyemi v. Owoeye (2017) 15 NWLR (Pt. 1580) 364; PDP v. Sheriff (2017) 15 NWLR (Pt. 1580) 364; Stanbic IBTC Bank Plc v. L.G.C. Ltd. (2017) 18 NWLR (Pt. 1598) 431; Conoil v. Vitol S.A. (2018) 9 NWLR (Pt. 1625) 463; Alli v. NUC (2018) 15 NWLR (Pt. 1641) 161; Nwora v. Nwabueze (2019) 7 NWLR (Pt. 1670) 1; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534; Dike-Ogu v. Amadi (2020) 1 NWLR (Pt. 1704) 45; Optimum C & P. Dev. Ltd. v. Ake Shareholdings Ltd. (2021) 18 NWLR (Pt. 1807) 148.
It is discernible from the elastic nature of abuse of judicial process, chronicled above, that there are no hard and fast rules in detecting the absence or presence of it in any action. In this wise, a court is enjoined by law to examine each case, predicated on its facts and circumstances, in order to ascertain if it displays an abuse of court process or not, see Waziri v. Gumel (2012) 9 NWLR (Pt. 1304) 185. On this score, the factual antecedents of each case have to be matched with the negative elements of abuse of court process. The barometer to gauge the existence of abuse of court process is the presence of multiplicity of suits bordering on the same issues and subject-matter between the same parties.
In the sight of the law, a party’s intention/motive in proliferating actions against an adversary is of no moment, see Saraki v. Kotoye (supra). Interestingly, the law grants the courts the unbridled licence, under their wide inherent powers, to truncate any matter that is guilty of abuse of court process, see O.S.S.I.E.C v. NCP (2013) 9 NWLR (Pt.1360) 451. In the province of abuse of court process, an action that is later-in-time vacates the temple of justice, see Dingyadi v. INEC (No. 1) (2010) 18NWLR (Pt. 1224); A-G, kwara State (2018) 3 NWLR (Pt. 1606) 266; Unifam Ind. Ltd. v. Ecobank (Nig.) Ltd. (2019) 1 NWLR (Pt. 1653) 187. An action that is trapped in the intractable nest of abuse of court process is liable to dismissal without restoration, see Dinyadi v. INEC (No.1) (supra); In Re: Apeh (2017) 11 NWLR (Pt. 1576) 252; A-G, Kwara State v. Lawal (supra); Nwosu v. PDP (2018) 14 NWLR (Pt. 1640) 532; Ajaokuta Steel Co. Ltd. v. G.I. & S Ltd. (2019) 8 NWLR (Pt. 1674) 213. – Per O. F. Ogbuinya, JCA
A notice of discontinuance connotes a voluntary termination of a suit or appeal by a claimant or appellant, see Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171. A notice of discontinuance/withdrawal filed by a party is not submissive to withdrawal by him. A party, a plaintiff or an appellant, is endowed with the right to withdraw his suit or appeal respectively. Discontinuance of an action or appeal can be before and during hearing of it. It can be done unilaterally or with the leave of court or consent of the opposing party, depending on the stage of the proceedings. It is at the discretion of a court to grant an application to discontinue a matter. Withdrawal of suit, either by dint of notice of withdrawal or oral application, can lead to its being struck out or dismissed by the court depending on whether or not the parties had reached litis contestatio. These attributes of withdrawal of an action have been endorsed by a flood of judicial authorities, see Rodrigues v. Public Trustees (1977) 4 SC 49; Eronini v. Iheuko (1989) 20 NSCC (Pt. 1) 503/(1989) 2 NWLR (Pt. 101) 46, Ezomo v. A.-G., Bendel State (1986) 17 NSCC 1154/(1986) 6 NWLR (Pt. 36) 448, Edozien v. Edozien (1993) 1 NWLR (Pt. 272) 678/(1993) 1 SCNJ 166, Akuneziri v. Okenwa (2002) 4 NSCQR 278, Umeanadu v. A.-G., Anambra State (2008) 9 NWLR (Pt. 1091) 175, Babatunde v. P.A.S.& T. A. Ltd (2007) 13 NWLR (Pt. 1050) 113, Onwuka v. Ononuju (2009) 11 NWLR (Pt. 1151) 174, Y.S.G. Motors Ltd. v. Okonkwo (2010) (Pt. 1217) 524, Idris v. C.O.P. (2010) 13 NWLR (Pt. 1210) 153, Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1, Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154, Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423, Nwite v. State (2013) 17 NWLR (Pt. 1382) 157, Enterprise Bank Ltd. v. Aroso (2014) 3 NWLR (Pt. 1394) 256; NV Scheep v. MV. “S. Araz (2000) 15 NWLR (Pt. 691) 622; Ogunkunle v. Eternal Sacred Order, C & S (2001) 12 NWLR (Pt. 727) 359; Setrace (Nig.) Ltd. v. Kpaji (2017) 5 NWLR (Pt. 1558) 280; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364; Uwemedimo v. Mobi Producing (Nig.) Unltd. (2019) 12 NWLR (Pt. 1685) 1. – Per O. F. Ogbuinya, JCA
This canon of interpretation of statutes, which embrace/encompass subsidiary legislations, postulates that the words of an enactment, substantive or subsidiary, should be accorded their ordinary meaning without embellishing/garnishing them with lexical embroidery that will render them susceptible to convolution. – Per O. F. Ogbuinya, JCA
LITIS CONTESTATIO – MEANING AND EFFECT OF LITIS CONTESTATIO – POWER OF PARTY TO DISCONTINUE HIS CASE WHEN ISSUES ARE NOT JOINED – ABUSE OF COURT PROCESS
There is no gainsaying the fact that a counter-claim, as exemplified in the Akure counter-claim, is an independent action which, on the footing of judicial convenience, is tried alongside the main claim. Its existence is not parasitic on the main claim nor is it tied to main claim’s apron strings. It has its own rules of pleadings and proof like the main claim. In essence, issues are joined in a counter-claim in the same way as in the principal claim. In the mind of the law, an issue is joined on a particular fact, necessitating its proof, when its assertion is disputed by an opposing party, see Galadima v. State (2018) 13 NWLR (Pt. 1636) 347. Issues are joined in pleadings, see Babatunde v. P.A.S. & T.A. Ltd (supra); Y.S.G. Motors Ltd. v. Okonkwo (supra). It is on record, the touchstone of the appeal, that the appellants, in their infinite wisdom, did not deem it right to file a defence to the Akure counter-claim. In the presence of that egregious and costly faux pas, they failed, in the eyes of the law, to join issue with the respondent on its Akure counter-claim. In effect, the Akure counter-claim was not, in the least, ripe for hearing. Thus, the feuding parties had not reached litis contestatio: a term that traces its paternity to Latin language. It denotes: “the process by which a legal issue emerges from the opposing statements of the parties. It gave birth to the Scots law term litis contestatio which means joinder of issue, arising from the defence in a law suit that has been lodged”, see Babatunde v. P.A.S. & T.A. Ltd. (supra) at 154 – 155, per Tobi JSC. It implies that, at that stage, the contending parties were outside judicial ring in their irreconcilable conflict. A party, usually a claimant/counter-claimant, enjoys the monopoly to discontinue his action. Even a court of law cannot compel a party to continue the prosecution of his suit, see PDP v. Sherrif (2017) 15 NWLR (Pt. 1588) 219; Babatunde v. P.A.S. & T.A. Ltd (supra); Dingyadi v. INEC (No. 2) (supra). Thus, it is ultra vires this court to penalise the respondent by stigmatising its Lagos counter- claim as an abuse of court on account of the respondent’s exercise of its legitimate and prerogative right to discontinue the Akure counter-claim. My noble Lords, in the spirit of completeness, a valid/viable notice of discontinuance erodes and disables the threat or effervescence of abuse of court process. In NV. Scheep v. M.V. “S. araz” (supra), at 664, Karibi-Whyte, JSC, incisively, declared: It is generally accepted that the abuse lies in the multiplicity of suits per se, and that is ipso facto prima facie an abuse. However, where there is an effective and valid discontinuance of one of the two suits constituting the abuse leaving only one of the suits in the hearing of the applications it seems to me the essential ingredients of abuse is not complete. The abuse is not made out. The view that instituting a multiplicity of actions per se against a defendant concurrently is an abuse of the process of the court, will only satisfy the law where there is the intention to proceed with the multiplicity of suits. It does not seem to me to come within the accepted principle where by virtue of a valid notice of discontinuance the plaintiff is only left with a suit against the defendant – See Aghadiuno v. Onubogu (1998) 5 NWLR (Pt. 548) 16. In this latter situation, the crucial and essential ingredients of vexation, annoyance and irritation caused by harassment of the defendant by means of a vexatious litigation would be absent at the hearing of the application. – Per O. F. Ogbuinya, JCA
It will smell of judicial sacrilege to tinker with a finding that has not disclosed any ounce of hostility to the letters and spirit of the law. – Per O. F. Ogbuinya, JCA
Legalpedia Citation: (2015) Legalpedia (CA) 11657 In the Court of Appeal Wed May 13, 2015…
Legalpedia Citation: (2015) Legalpedia (CA) 21101 In the Court of Appeal Fri May 15, 2015…
Legalpedia Citation: (2015) Legalpedia (CA) 40148 In the Court of Appeal Fri May 15, 2015…
Legalpedia Citation: (2015) Legalpedia (CA) 11130 In the Court of Appeal Fri May 15, 2015…
Legalpedia Citation: (2015-05) Legalpedia (SC) 19711 In the Supreme Court of Nigeria Fri May 15,…
Legalpedia Citation: (2015-05) Legalpedia (SC) 21151 In the Supreme Court of Nigeria Fri May 15,…