➥ CASE SUMMARY OF:
General Telephone and Electronics Limited v. Asset Management Corporation of Nigeria (2017) – CA
by “PipAr” Branham-Paul C. Chima.
➥ COURT:
Court of Appeal – CA/L/336/2015
➥ JUDGEMENT DELIVERED ON:
Friday, the 10th day of March, 2017
➥ AREA(S) OF LAW
Abuse of court process.
➥ PRINCIPLES OF LAW
⦿ WHERE NO ISSUE ARISES FROM A GROUND OF APPEAL
In law, a ground of appeal from which no issue for determination was distilled is deemed abandoned and liable to be struck out without much ado. Consequently, Ground 7 in the Notice of Appeal are hereby stuck out. — B.A. Georgewill, JCA.
⦿ MEANING 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 of 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. — B.A. Georgewill, JCA.
⦿ THE CONSEQUENCE OF LIS PENDENS
I thought I should state right away that the doctrine of lis – pendi relied also heavily upon by the Appellant in the circumstances of this appeal and on the real purport and import of that principle is of no moment as it does not give rise to abuse of Court process, since its consequences in law is very clear, it neither renders the transaction illegal, null and void as strenuously but erroneously contended by the Appellant in this appeal but rather it makes whatever interest allegedly acquired in the subject matter of a pending suit subject to the outcome of the suit such that if the party who had carried out the transaction or sale with the non party losses the Suit then the transaction is rendered a nullity but in the event that the party succeeds in the suit then the transaction or sale is validated and takes effect between the parties that duly entered into it. In whatever way this principle is considered it is, in my view, not applicable to the instant appeal to render the Respondent’s purchase illegal or void or its Suit against the Appellant an abuse of Court process. See Governor of Lagos State v. Ojukwu (1986) 3 NWLR (pt. 18) 621 @ p. 636; Amaechi v. INEC (No.1) (2007) 18 NWLR (pt. 1065) 42 @ p. 48. — B.A. Georgewill, JCA.
⦿ PRIVIES ARE OF THREE CLASSES
Now, the judgment of a Court binds not only the parties but also all those who come within the legal ambit of privies to the parties on the record. In law, privies are of three classes, namely: a. Privies in blood b. Privies in law c. Privies in Estate. See Vol. 15 Halsbury Laws of England, 3rd Edition @ P. 196 Article 372. See also Coker v. Sanyaolu (1976) 10 NSCC 566 @ p. 573 per Idigbe JSC. See also Adone v. Ikebudu (2001) 7 SCNJ 513 @ p.534; Abubakar v. B. O. & A. P Ltd (2007) 18 NWLR (pt. 1060) 319; Agbogunleri v. Depo (2008) 3 NWLR (Pt. 1074) 217; Daniel V. Kadiri & Anor (2010) LPELR – 4017 (CA). — B.A. Georgewill, JCA.
⦿ MEANING OF PRIVY
Who then is a privy to a party to a suit pending in a Court of law, and who even without being formally joined as a party to the suit would in law be bound by the result, the judgment, of the Court in such a suit? A “Privy” has been defined so succinctly as “A person who is in privity with another. One who is a partaker or has any part or interest in any action or matter or thing. In connection with the doctrine of Res Judicata, one who after the commencement of the action has acquired interest in the subject matter affected by the judgment though or under one of the parties as by inheritance, succession, purchase or assignment.” See Blacks Law Dictionary 6th Edition @ p. 1200. See also 30 Daniel V. Kadiri (Supra); Chief Oyelakin Balogun V Pastor Moses Afolayan (2005) All FWLR (Pt. 85) 331 @ p. 334; Kola Adedeji & Anor V. Otunba Segun Adebayo & Ors. (2012) LPELR 7990 (CA). — B.A. Georgewill, JCA.
⦿ ALLEGATION OF ABUSE OF COURT PROCESS MUST BE PROVED
My lords, an allegation of abuse of Court process is a serious allegation and 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 is sufficient enough to warrant the finding of an abuse of Court process, failing which 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 be alleges. — B.A. Georgewill, JCA.
⦿ ABUSE OF COURT PROCESS IS OF INFINITE VARIETY
The concept of abuse of process is imprecise and of infinite variety. However, its most common feature is in instituting multiplicity of actions on the same subject matter against the same opponent on the same issues. The abuse lies in the multiplicity and manner of exercise of the right, rather than the exercise of the right per se. See OKORODUDU vs. OKOROMADU (1977) 3 SC 21 and SARAKI vs. KOTOYE (1992) 9 NWLR (PT 264) 156 at 188. — U.A. Ogakwu, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Biobele Abraham Georgewill, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Thompson Ashiojo Esq.
⦿ FOR THE RESPONDENT
N.O. Balogun Esq.
➥ CASE FACT/HISTORY
The appellant commenced a suit at the High Court of Lagos State in 2009 alleging inter alia that it is not indebted to the Intercontinental Bank Plc, now Access Bank Plc. Intercontinental Bank Plc counterclaimed in the suit that the appellant is indebted to her. The present respondent (AMCON) was established by the Asset Management Corporation of Nigeria (AMCON) Act 2010. The respondent purchased the debt allegedly owed by the appellant to Intercontinental Bank, the counter claimant, in the suit at the High Court of Lagos State. The said suit and counter claim filed in 2009 is still pending at the High Court of Lagos State. The Court below found that it is the same counter claim filed by the counter claimant, Intercontinental Bank, now Access Bank Plc, at the High Court of Justice Lagos State that the respondent, the purchaser of the debt brought as her action against the appellant at the Court below.
This is an appeal against the ruling of the Federal High Court, Lagos Division, Coram: C. J. Aneke J., in Suit No. FHC/L/CS/1355/2012: Assets Management Corporation of Nigeria V. General Telephone and Electronics Ltd., delivered on 30/10/2014, wherein the Appellant as Defendant’s Preliminary Objection filed on 13/3/2013 challenging the competence of the Respondent as Claimant’s Suit was dismissed.
The Appellant, who was the Defendant before the Court below was thoroughly dissatisfied with the said ruling, had promptly appealed to this Court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the learned trial judge can rightly assume jurisdiction to adjudicate on the matter in the Court below notwithstanding the pendency of another action with respect to the same subject matter and between the same parties, their successor in-title and/or privies in Suit No: LD/52/2009 before the High Court of Lagos State, a Court of coordinate jurisdiction?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE FILING OF A NEW SUIT BY THE RESPONDENT IS AN ABUSE OF COURT PROCESS
“My lords, what better words can be used to describe the effrontery of the Respondent to ignore, without any legal justification as none had been 31 shown in this appeal, the Appellant?s Suit pending before a Court of competent jurisdiction to embark on what can be aptly described as forum shopping to institute yet another Suit on the same subject matter and issues and between the same parties and their privies rather than join the already pending Suit if it feels so strongly about personally protecting its interest in the eligible asset it had purchased from a party to a Suit pending in a Court of competent jurisdiction so that it may advance whatever arguments and present whatever facts or materials it may desire to place before the said Court so that all the issues involved may be determine once and for all in one fell swoop in that Suit than abusing the Court process by filing a fresh suit. In law, a Suit 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.”
“My lords, in view of the established facts that on all the key factors as would constitute an abuse of Court process, the parties to this appeal are ad idem, namely; the parties, the subject matter and the issues involved in both the Respondent’s suit in this appeal and the Appellant’s suit still pending before the High Court of Lagos State are the same, the findings by the Court below that the Respondent’s suit did not constitute an abuse of the Court process on the face of the pendency of the Appellant’s suit involving the same subject matter, issues and parties, including their privies as in the Respondent’s suit, was clearly in grave error and thus perverse, neither being supported nor borne out by the established facts before the Court below. 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 to set aside.”
.
.
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✓ DECISION:
“On the whole therefore, I hold that the Appeal has merit and ought to be allowed. Consequently, I hereby so allow it.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ COORDINATE JUDGES CANNOT OVERTURN ONE ANOTHER
In NWANI vs. EDE (1996) 8 NWLR (pt. 466) 332, Tobi, JCA (as he then was) stated: “It is a general principle of law that a Judge lacks the jurisdiction to overturn the decision of another Judge, even if he feels strongly that the decision is wrong. Such a judicial conduct is tantamount to presiding over the decision of the brother Judge on appeal. The Constitution does not allow such a procedure…”
⦿ COURT OF COORDINATE JURISDICTION GIVING CONTRADICTORY JUDGEMENTS BRINGS IGNOMINY
Pats-Acholonu, JSC in N.I.M.B. LTD vs. U.B.N. LTD (2004) 12 NWLR (pt. 888) 599 at 618 thus: “Now there is no doubt that the two Courts in this case of co-ordinate jurisdiction became seised of the same subject matter in which it must be made absolutely clear, made orders which from whatever or however any one may look and try to synthesise or analyse them, were pitched against each other. In that case, the protagonists, id est, the legal combatants would inevitably be put in the quandary as to which order would prevail or be obeyed. …They ought necessarily to avoid a situation where the Court by its being less cautious exposes itself by the nature of the order it makes to ridicule and the majesty and aura of its pronouncements are either compromised or treated with ignominy as a non-issue by the confused parties and I dare say by the common citizenry.”
➥ REFERENCED (OTHERS)
