⦿ CASE SUMMARY OF:
Alhaji Audu Shugaba v. Union Bank Of Nigeria Plc (1999) – SC
– Suit struck out;
– Contempt of court;
– Court order;
– Abuse of court process;
Alhaji Audu Shugaba
Union Bank of Nigeria Plc.
(1999) 11 NWLR (Pt.627) 459;
⦿ LEAD JUDGEMENT DELIVERED BY:
A. B. WALI, J.S.C
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– O.B. James, Esq;
* FOR THE RESPONDENT
J.K. Gadzama Esq, SAN;
⦿ FACT (as relating to the issues)
Alhaji Audu Shugaba, the plaintiff/appellant is a customer of the defendant/respondent. On October 30th, 1987, the appellant filed suit No. M/135/87 in which he prayed for the following reliefs:
“(a) A declaration that the purported deed of legal mortgage in respect and covered by certificate of occupancy No. B0/3131 and known as International Airport Hotel Maiduguri and situate along Kano Road, Maiduguri, registered in favour of the defendant is illegal, null and void and of no effect whatsoever.
(b) An order perpetually restraining the defendant, its agents, servants or privies from auctioning, selling or in any way disposing of the property covered by Certificate of occupancy No. BO/3131 in pursuance of or under the purported deed of legal mortgage, illegally and unlawfully registered in favour of the defendant at the Lands Registry, Maiduguri.
(c) A declaration that the plaintiff is not owing the defendant the sum of N333,210.85 or any sum whatsoever.”
The trial proceeded and evidence of the appellant in support of his case was partly taken. The appellant’s evidence was being taken when he stopped coming to court for no apparent reason. As stated in the appellant’s brief before this court: “The case was part heard until it was struck out on 11th July, 1994 for want of diligent prosecution.”
In striking out the suit the court awarded, costs of N500.00 to be paid before the suit could be relisted. Instead of complying with order of the court by paying the N500.00 costs to get the suit relisted, the appellant filed another Suit No. M/177/94. The filing of fresh suit to wit, No. M/177/94 was objected to by the Respondent on ground that the costs awarded in M/135/87 had not been paid when the step in filing the fresh action was taken. The learned trial judge agreed with counsel for the defendant when she stated in the drawn up order signed by her on 25th January, 1995, “That an order is made refusing the application for interlocutory injunction and a further order is also made striking out the main suit No. M/177/94 now pending before this court as same is incompetent with the applicant failing or refusing to comply with the Court’s Order as to costs. There is also a cost of N500.00 to the respondent and same to be paid before any further step is taken in this case.”
The appellant abandoned both M/135/87 and M/177/94 and filed another fresh suit on 27th January, 1995 M/29/95 in which he repeated the reliefs sought for in the previous suits. He refused to comply with order of the court in M/177/94 to pay costs awarded therein before any further step is taken in the case.
It was after the drawn up order dated 25th January, 1995 copied on page 33 of the Record that the defendant proceeded with the sale by auction, of the appellant’s property the subject of this litigation. The sale by auction was carried out by the Respondent on 4th February, 1995. Aggrieved with the Respondent’s action of sale by auction of the property the appellant yet commenced another action to wit, suit No. M/147/95 challenging the auction sale, and praying that the court nullify the auction.
The appellant followed this new Suit by a Motion on Notice No. M/94M/95. The appellant was praying in the Motion for an order of the trial court to set aside the auction sale on two grounds: “1. that he had a pending Suit No. M/29/95 in the court yet to be decided. 2. that no public bidding took place at the auction sale but the property was purportedly sold to an undisclosed purchaser.”
The Motion was extensively argued and contested by learned counsel on both sides and in a considered Ruling as a result thereof, the learned trial judge concluded: “On the totality of the determinations supra, it is my considered opinion and it follows that the motion in issue No. M/94M/95 in suit No. M/29/95 is incompetent on the ground that the applicant had failed to comply with order of court and thus in contempt of the said order made the 23rd January 1995 on exhibit 1 attached to the counter affidavit of the respondent. The order which was to the effect that the N500.00 costs which ought to be paid before any further step is taken in the said case. In the same vein and with Suit No. M/147/95 also filed after the courts order and thus amounting to contempt of such order on the failure to comply with the said cannot also be competent. In the result and on the totality of the matter before me I hold the view that both the motion in point and also the Suit No. M/147/95 are hereby refused and struck out respectively. Consequently and with the same motion being incompetent I do not consider it necessary to dwell into the rest of the arguments and authorities cited which in view of the incompetency lack foundation. While motion No. M/94M/95 is refused the Suit No. M/147/95 is struck out. I also make no order as to costs.”
The Appellant appealed to the Court of Appeal, which ruled against it. Hence, this appeal to the Supreme Court.
1. Can it be said that the learned Justices of the Court of Appeal, Jos Division, were right in affirming the decision of the trial High Court when the decision was not based on the merit of the case?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH #10,000 AGAINST THE APPELLANT]
1. FOR ISSUE 1, THE COURT GAVE JUDGEMENT AGAINST THE APPELLANT AND IN FAVOUR OF THE RESPONDENT.
i. Courts do not exercise their discretionary powers to aid those who flout its orders. The conduct of the appellant in this case is not only a glaring abuse of court process and contempt of its lawful orders but also most irresponsible and reprehensible.
The court upheld the decision of the Court of Appeal (lower court), to wit: “In the case on hand, the order of the court below was to the effect that the appellant should not take any further step in the proceedings until costs awarded against him has been paid. It is well settled that where a statute provides for the fulfillment of a condition before an action is commenced, failure on the part of the plaintiff to fulfil the condition will render the entire action and the subsequent trial a nullity, however ably it was conducted: See Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387; Raymond Obeta & Attorney-General Enugu State v. Josephat Maduabuchi Okpe (1996) 9 NWLR (Pt. 473) 401 at 445. By analogy, It seems to me that the suits filed by the appellant in disobedience of the pre-condition to pay the costs awarded by the court below are incompetent.”; “It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. A party who knows of an order irregular cannot be permitted to disobey it.”
i. It is quite clear to my mind that the decision by the Appellant to file a new suit cannot be construed as a step towards the relisting of the struck out suit. In legal parlance, where a suit is struck out for want of diligent prosecution, as was the case in the appeal in hand, the said suit cannot be brought back to the General Cause List by the prayer for ‘relistment’ made by motion on notice. The Appellant did not move the court in terms of any prayer for relisting of the suit that was struck out, a cheaper and faster process than going the whole hog of filing an entirely new suit. One thing is clear, it is a matter of choice open to a litigant or rather, his counsel, to decide whether to relist a suit that is struck out or file a new suit instead. No doubt, it seems to me that whatever decision counsel reaches in such circumstances is a matter of strategy. If filing a new suit is decided by counsel, my only reservation is that it is an expensive strategy which ordinarily can hardly be said to be in the financial interest of the litigant. However counsel in the magister litas vis-a-vis his client.
ii. The orders, as loosely worded by the trial court, in my judgment, did not constitute a condition precedent to the institution of a fresh action, The mandatoriness of the orders to pay costs was not at large; it was expressly restricted to the right of relistment and taking of further step in the suit struck out.
i. However, in my view, an order prohibiting a party from taking steps in a case is not the same as an order prohibiting him from instituting another action. An order, such as in the present case, that costs ordered must be paid “before any further step is taken in this case,” is not a prohibition of a fresh action by the plaintiff, even in respect of the same subject-matter. Instituting a fresh action is not a step taken either in a pending case or even in a case which had been struck out. I venture to think, without at all attempting to be exhaustive, that “fresh steps” that can be taken in a case struck out would be steps taken to set aside the order striking out the case or to relist the case or in relation to costs awarded in the case or steps taken, howsoever, incidental to that case. All these will not include a fresh action. The terms of the order of the trial judge are so explicit that there is no necessity to divine her intention. I find it difficult to see how, or to agree that, instituting a fresh action was tantamount to taking a fresh step in the action which had been struck out.
ii. Before I part with this appeal, it is pertinent to make two observations. The first is that a person who institutes an action is exercising a legal right not subject to the discretion of the court. He cannot be defeated at the threshold by invocation of the equitable maxims: “He who comes to equity must do equity.” and “He who comes to equity must come with clean hands.” as the trial judge tried to do. For a similar reason, the case of Odogwu v. Odogwu (1992) 2 NWLR (Part 225) 539 is not relevant. That was a case in which the alleged contemnor was seeking an exercise of the discretion of the court in his favour. The right of a plaintiff to institute an action is not a discretionary right. Where a court strikes out an action taken in abuse of the process of the court, it is because the right to institute the action has been abused and not because commencement of the action is subject to the discretion of the court. The second observation, though of less importance or relevance, is that the cause of action on which suit No. M/147/95 was founded occurred after the order of costs in question was made and related not to the validity of the mortgage transaction, as was the case in the previous actions, but to the conduct of the auction sale which was challenged. Although the point had not been argued and has not been an issue on this appeal, it is doubtful if such action which related to an entirely different cause of action can reasonably be held to be taken in abuse of the process of the court in the circumstances.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
Mobil Oil (Nig.) Ltd v. Assan (1995) 8 NWLR (Pt. 412) 129 at 143, the Supreme Court said: “It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. A party who knows of an order irregular cannot be permitted to disobey it.”
⦿ NOTABLE DICTA
Where a party has refused to implement a court order, the court will not give him audience. – A.B Wali, JSC. Shugaba v. UBN (1999)
This is a case where the Court had given an order as to costs and that no further action be taken in the matter until the costs N500.00 was paid. No appeal was raised against that order. Yet without complying with the order so made, the plaintiff was encouraged to pursue similar actions against the same defendant. All that had happened in this case is clearly an abuse of the process of the Court. This is because the Court process has not been used bona fide and properly. – Ejiwunmi, JSC. Shugaba v. UBN (1999)
I have carefully considered the arguments marshalled by learned counsel for the parties set out in the briefs and in oral submissions, and after anxious consideration, regrettably I find myself unable to agree to the leading judgment delivered by my learned brother. Wali, JSC for the reasons I shall set out in the course of this judgment. The line of disagreement is quite narrow but very substantial in that the determination of the appeal rests, in the final analysis, on one’s understanding of the import of the order made in relation to costs by the learned trial Judge. – Achike, JSC. Shugaba v. UBN (1999)