IN THE COURT OF APPEAL OF NIGERIA
On Tuesday, The 11th day of February, 2014
BANK PHB (PLATINUM HABIB BANK) PLC ................. Appellant
MR. JAMES EJEMBI OKEFE .............. Respondent
J. S. Okutepa, SAN, with him M. O. Ozueh, Ede Uko and S. U. Akoh for Appellant
S. O. Okpale with him G. O. Ezeudeagwu or Respondent
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Benue State sitting in Makurdi (hereinafter referred to as the trial Court) delivered on 15th December, 2010.
At the trial Court, the respondent as plaintiff sued the appellant as defendant "vide" a writ of summons and statement of claim filed on 9th November, 2010 and claimed against the appellant as follows:
a. The balance of my unpaid salaries/allowance from May 2007 to May 2009 i.e. N606,450.00 x 5... N15,236,250.00
b. The balance of my unpaid salaries/allowance from June 2009 to October 2010 i.e. N859,933.65 x 17...N14,610,372.00
c. Ex-gratia payment being six months of my monthly salaries/allowance i.e. N196,839.00 x 6....N5,501,034.00
GRAND TOTAL.................... N35,344,656.00
The said writ of summons and statement of claim were accompanied with an application for summary judgment, to be entered for him, pursuant to the provisions of Order 11 of the Benue State High Court (Civil Procedure) Rules, 2007. The respondent's motion for summary judgment also filed along with the originating processes were fixed for hearing on the 14th of December, 2010. All the said processes and notice of hearing were alleged to have been served on the appellant. However, on the hearing date, that is, 14th December, 2010, the appellant was absent without any excuse. The respondent's motion was accordingly moved and in a considered decision delivered on 15th December, 2010, the learned trial Judge entered judgment in favour of the respondent as follows:
The claim of the plaintiff is a liquidated sum which is in the class to be tried summarily. In the circumstance, judgment is entered in favour of the plaintiff against the defendant in the sum of thirty-five million, three hundred and forty (sic) seven thousand, six hundred and fifty six naira (N35,347,656) plus 10% (sic) interest per annum from the date of judgment until same is finally liquidated.
Aggrieved with the decision of the trial Court, the appellant filed a couple of motions, one of which is the one filed on the 29th of December, 2010, that is, motion No: MHC/1491M/2010 which sought the following orders:
i. An order setting aside the judgment of this Hon. Court in suit No. MHC/370/2010, delivered on the 15/12/2010, pursuant to motion No. MHC/1249M/2010.
ii. An order striking out suit No. MHC/370/2010.
In the alternative to prayer (ii) above:
(i) An order extending time for the defendant/applicant to file her statement of defence, deposition of her witnesses exhibits to be used in her defence and a written brief in reply to the application for summary judgment.
(ii) An order the Processes listed in the alternative prayer (i) above as duly and properly filed and served appropriate filing fees having been paid.
The grounds upon which the motion was predicated are that:
(i) The judgment of this Hon. Court was obtained by fraudulent concealment of material facts.
(ii) The judgment was delivered without jurisdiction as Bank PHB (Platinum Habib Bank) Plc, sued in this case is not a juristic corporate personality capable of suing and being sued.
(iii) The court was without jurisdiction when it heard and determined motion No MHC/1249M/2010, as necessary parties/juristic persons were not before the court.
On the 17th of January, 2011 while the motion to have the judgment of 15th December, 2010 set aside was still pending before the trial court, the appellant filed this appeal against the said judgment to this Court. The hearing of the consolidated motions including the one to have the judgment of 15th December, 2010 set aside, commenced on 24th January, 2011 at the trial court and ruling in respect thereof was handed in on 31st March, 2011.
It is pertinent to state at this juncture that, the appellant equally lodged an appeal against the said ruling of 31st March, 2011 to this court "vide" the notice and grounds of appeal filed on 4th April, 2011. The latter appeal has been entered, it is, CA/MK/61A/2011. As it is, the instant appeal, also entered, that is, CA/MK/61/2011 was heard together with the said appeal No: CA/MK/61A/2011 on the 11th of November, 2013.
In line with the rules of this court, briefs of argument were filed and exchanged between the two parties. The learned counsel for the Respondent filed a notice of preliminary objection to the competence of the appeal. The notice of preliminary objection is dated 15th July, 2013 and was filed on 30th July, 2013. The grounds upon which the objection is predicated state thus:
i. The notice of appeal filed on the 17th day of January 2011 upon which this appeal is predicated was filed in abuse of court Process in that the appellant had exercised the option under the High Court Civil Procedure Rules by applying to set aside the judgment by filing motions Nos. MHC/1470M/2010 and MHC/1491M/2010 on the 21st day of December, 2010 and 24th day of December, 2010 respectively.
ii. That upon the refusal to set aside the judgment as prayed in the above referred motions the Appellant filed a notice of appeal against the order of the court below refusing to set aside her judgment of the 15th day of December, 2010 and prayed this court to set aside the judgment.
iii. That appeal against the ruling of the court below refusing to set aside her judgment is now pending before this court as appeal No.CA/MK/61A/2011
iv. That the issues raised and argued in the present appeal, are the same as the issues raised in the motions No. MHC/1470M/2010 and MHC/1491M/2010 filed earlier in time than the present appeal, and which issues are resolved against the Appellant hence the appeal No.CA/MK/61A/2011.
v. The grounds of appeal in the notice of appeal do not arise from and or attacked the ratio of the judgment appeal from.
vi. The grounds of appeal are argumentative, vague, and general in terms and are not precise or specific.
vii. The particulars to the grounds of appeal either do not relate to the ground and or are independent complaint.
viii. The issues formulated from the grounds of appeal do not flow therefrom and or do not emanate from the grounds.
The legal arguments in support of the objection are contained in paragraphs 6.00 to 8.01 at pages 5 to 18 of the Respondent's brief of argument dated 15th July, 2013 and filed on 30th July, 2013. The learned senior counsel for the appellant filed an appellant's reply brief in response to the preliminary objection filed for the respondent. The said reply brief is dated 14th October, 2013, it was filed on 17th October, 2013 and deemed properly filed and served on 11th November, 2013.
As stated above, the appeal was heard by this Court on the 11th of November, 2013. That day, Mr. Okpale Sunday Ojikpa, the learned counsel for the respondent identified and adopted the notice of preliminary objection and the arguments in support thereof contained in the respondent's brief of argument dated 15th July, 2013 and filed on 30th July, 2013. He urged the Court to uphold the preliminary objection and dismiss the appeal for being an abuse of court process.
The learned senior counsel for the appellant, Mr. J. S. Okutepa, SAN, identified and adopted the appellant's brief of argument dated 16th January, 2013, filed on 23rd January, 2013 and deemed properly filed and served on 2nd July, 2013. He equally adopted the appellant's reply brief in response to the preliminary objection of the respondent. He urged this Court to dismiss the preliminary objection, allow the appeal, set aside the judgment of the trial Court and grant the reliefs sought by the appellant in the notice of appeal.
Furthermore, the learned counsel for the respondent adopted and relied on the respondent's brief of argument, urged this court to dismiss the appeal and affirm the judgment of the trial Court.
As already stated above in this judgment, the learned counsel for the respondent has filed a notice of preliminary objection to the competence of this appeal. Generally, the whole basis of a preliminary objection to an action including appeals is designed to short circuit an action/appeal by preliminary points of law to show that the action/appeal cannot be maintained and sustained. Therefore, the law is well settled that when the competence of an appeal is challenged as in the instant appeal, the court is duty bound to first and foremost consider the charge of incompetence and rule on it. See the cases of: (1) Alabi v. Amoo (2003) 12 NWLR (Pt. 835) p. 537; (2) NEPA v. Ango (2001) 15 NWLR (Pt. 737) p.627; (3) A.G. Fed. v. ANPP (2003) 12 SCNJ p.67 and (4) Afribank (Nig.) Plc. v. Akwara (2006) 5 NWLR (Pt. 974) p.619.
It is on this note that I shall now go ahead to consider and determine the respondent's preliminary points of law that the instant appeal cannot be sustained. I have earlier on in this judgment set out the grounds upon which the respondent's objection is raised. The said grounds can be classified under two heads. Under the first head are grounds (i) - (iv). These four grounds have to do with this appeal having being filed in abuse of court process. Under the second head are grounds (v) to (viii), an attack on the competence of the entire grounds of the appeal.
In respect of the first head of the objection, the learned counsel for the respondent submitted unscripted, that:
It is not in dispute and is borne out by the records of appeal that immediately after the appellant became aware of the judgment against her she filed two motions before the court below, one on the 21st day of December, 2010 registered as motion No. MHC/1470m/2010 containing a prayer urging the court for extension of time to apply to set aside the judgment obtained on the 15th day of December, 2010.
The second motion was filed on the 24th day of December, 2010 and entered as motion No.MHC/1491m/2010, which motion is principally and essentially praying the court to set aside the judgment the subject matter of the present appeal.
The above two motions were consolidated, argued and in a consolidated considered ruling the court below dismissed the prayers on all the grounds upon which the application are predicated.
The prayers on the face of the motion paper No.MHC/1491M/2010 filed on the 24 day of December, 2010 are:
i. An order setting aside the judgment of this Honourable court in suit No. MHC/370/2010, delivered on the 15/12/2010, pursuant to motion No.MHC/1249m/2010.
ii. An order striking out suit No.MHC/370/2010. While the prayers on the notice of appeal, the subject matter of this appeal filed on the 17th day of January, 2011 (i.e. Twenty three (23) days after the above referred motion was filled are also as follows:
i. An order setting aside the judgment of the learned trial judge delivered on the 15/12/2010.
ii. An order dismissing the claim of the respondent in the court below.
It is abundantly clear and not in dispute whatsoever that the parties in motion No. MHC/1491m/2010 filed on the 24th of December, 2010 and the parties on the notice of appeal filed on the 17th day of January, 2010 are the same, the subject matter, which is the judgment of the 15th day of December, 2010, are also the same and the relief in the two processes are equally the same, that is calling on the Court below and or this court to set aside the judgment of the 15th day of December, 2010 and strike out/dismiss the claim of the Respondent.
...The 17th day of January, 2010 was later in time than the motion No. MHC/1491m/2010 filed on the 24th day of December, 2011.
....submitted that where a default judgment is entered against a party he has an option under the Benue State High Court Civil Procedure Rules to either apply for the court to set aside the judgment or exercise her right of appeal against the judgment praying the Court of Appeal to set aside the judgment. He does not have the liberty to pursue the two alternative courses simultaneously. See BASSEY NELSON ISONG v. MR. EDEM B. UMOREN (2011) ALL FWLR (Pt. 558) 923 at 936 para. G - H where this held that:
"where default judgment has been given against a defendant the defendant has the option of either moving the trial court under the rules of the court to set aside the default judgment or lodging an appeal against it"
...the appellant having taken the option to apply to the Court below under Order 20 Rule 12 of the Benue State High Court Civil Procedure Rules 2002 set aside the judgment vide motion No. MHC/1491m/2010 cannot simultaneously file a notice of appeal to this court praying her to set aside the same judgment as that option was no longer available to her having elected to approach the trial court for the relief. In that circumstance the later process that is, the instant appeal ...constitutes an abuse of court process.
The two processes are between the same parties, the same subject matter and the same relief cannot be allowed to be pending as in this case, as same will amount to abuse of court process.
The Cases of APANISILE IDOWU v. FEDERAL REPUBLIC OF NIGERIA (2012) ALL FWLR (Pt. 648) 1001; AFRICAN CONTINENTAL BANK PLC vs. DAMIAN IKECHUKWU NWAIGWE & ORS (2011) 45 NSCQR (Pt. 11) 1230
The appellant having taken the option or the alternative to apply to the court below to set aside the judgment of the 15th day of December, 2010 pursuant to the Benue State High Court Civil Procedure Rules 2007, no longer has the alternative remedy or option of appeal open to her. In the circumstance the notice of appeal filed on the 17th day of January, 2011 while the application filed on the 24th day of December, 2010 was pending and not yet deposed, was filed in abuse of the court process.
....submitted that where the court found that a process is filed in abuse of her process the appropriate order that the court must make in respect thereof, is an order dismissing the offending process. See NURUDEEN ADIO BADRU & ORS v. SALAUMUSA OLORUNFEMI
.....upon the dismissal of the motions of the appellant calling upon the court below to set aside its judgment the appellant filed an appeal against the ruling of the court below on the 4th day of April, 2011.
... an appeal is....Not a fresh suit....The appellant having chosen to pursue the option he had earlier taken, by way of application to the lower court even up to the appellate court, as in this case cannot be allowed to proceed with this appeal which is the later in time, an appeal being continuation of what has been started earlier in the Court below calling on the appellant court to review the decision of the lower court. Thus from whatever angle and or perspective the matter is approached this appeal is bound to be dismissed for being abuse of the process of the court.
Contrariwise the learned senior counsel for the appellant submitted unscripted, that:
The ground of objection is misconceived as there is no provision in the Benue State High Court Civil Procedure Rules 2007 restricting the appellant herein from exercising the option of applying to have the judgment set aside and to also appeal the said ruling concurrently. It is not in dispute that the application to set aside the judgment was first filed in the court below before filing late the notice of appeal and as at 30/03/2011 when the court below refused the application, the appeal was yet to be entered. So, this appeal cannot constitute an abuse of court processes. The crux of our contention is that since appeal was filed later in time and appeal was yet to be entered in the court of Appeal when the court below heard and determined the application for setting aside the judgment, this appeal cannot be an abuse of the process of this Hon. Court. See Mohammed v. Husseini (1998) 12 SCNJ 136 at 161; Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 2000) 659.
It is important to point out that, this appeal was filed in exercise of the constitutional right of appeal. There is no doubt that, the Appellant has an unfettered constitutional right of appeal under Section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), There is also no doubt that, the exercise of a constitutional right of appeal cannot be considered to be an abuse of the process of court. It has been held in a litany of cases that, a litigant has a constitutional right of appeal against any decision of the court of law. See Ault & Wiborg (Nig.) Ltd v. Nibel Industries Ltd (2010) 16 NWLR (Pt. 1220) 486; Opekun v. Sadiq (2003) 5 NWLR (Pt. 814) 475; Tukur v. Government of Gongola State (1988) 1 NWLR (Pt. 68); Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt. 96) 157.
The Cases of (1) Umeh v. Iwu (2008) 8 NWLR (Pt. 1089) 225 at p.246 (2) C.O.M. Inc. v. Cobham (2006) 15 NWLR (P. 1002) 283 at p.305 F - H. (3) Ajibi v. Olaewe (2003) 8 NWLR (Pt. 822) 237 at 265 - 266
It is not sufficient for a Respondent to allege that, the process of court has been abused merely because there is multiplicity of actions. It is incumbent on the Respondent in such a situation to prove or show by evidence that, the processes initiated were intended to harass, irritate and annoy the opponent without more, but that is not the case here.
More so, that the appellant's reliefs sought in this appeal are different from the one emanating from appeal No.: CA/MK/61A/2011. The appeal is seeking to set aside the order refusing application to set aside its earlier default judgment.
Every decision given by trial courts are subject to the exercise of the right of appeal. The right to apply to set aside judgment of court is also statutory right.
On the grounds under the first head the respondent's point of objection is hinged on abuse of court process. An abuse of judicial process means that the process of the court has not been used "bona fide" that is, in good faith and properly. The implication of the objection is that, this Court should not allow the appeal on the ground of abuse of its process. Now, the legal concept of the abuse of the judicial process or the abuse of the procedure of the court is very wide and infinite in variety. However, it is a general principle that an abuse of the process of the appeal court is constituted when more than one suit are instituted by a plaintiff/appellant against a defendant/respondent in respect of the same subject-matter, to the harassment, irritation and annoyance of the defendant/respondent and in such a manner as to interfere with the administration of justice. See the cases of: (1) FRN v. Abiola (1997) 2 NWLR (Pt. 488) p.444; (2) Okafor v. A.G. Anambra (1991) 6 NWLR (Pt. 200) p.659 and (3) Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) p.156. This is also known as multiplicity of actions. Therefore, it is generally accepted that, abuse lies in the multiplicity of the actions per se and "ipso facto" multiplicity is "prima facie" an abuse. See also the cases of: (1) Morgan v. W.A.A. Eng. Co. Ltd. (1971) 1 NWLR p.219 and (2) NV. Scheep v. MV. S. Araz (2000) 15 NWLR (Pt. 691) p.622. In the case of: Ogeojeofo v. Ogeojeofo (2006) 3 NWLR (Pt. 966) p.205, Mohammed, JSC had the following to say on this point:
...the abuse consists in the intention, purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice, such as instituting different actions between the same parties simultaneously in different courts even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6. Similarly so held was where two similar processes were used in respect of the exercise of the same right. (The underlining is supplied by me for emphasis)
However, there is an exception to the above general principle that instituting a multiplicity of actions per se against an adversary concurrently is an abuse of the process of court and that is, where there is a valid notice to discontinue one action and the plaintiff/appellant will at the end of the day be left with just one action against the defendant/respondent. See the cases of: (1) NV. Scheep v. MV. S. Araz (supra) and (2) Aghadiuno v. Onubogu (1998) 5 NWLR (Pt. 548) p.16.
It is clear as a bell that, the parties in the instant appeal are the same in appeal No: CA/MK/61A/2011. Equally, the two appeals share the same subject-matter and the reliefs sought by the appellant herein are the same as being sought by it in the other appeal. I have earlier on in this judgment set out these details. The common aim or denominator in the instant appeal and appeal No. CA/MK/61A/2011 is the desire of the appellant to have the judgment of the trial Court in suit No. MHS/370/2010, delivered on 15th December, 2010 against it, set aside and dismissal of the claims in the suit filed against it by the respondent at the trial court. The learned senior counsel's submission is that the notice and grounds of appeal the subject-matter of this appeal was first in time, in that it was filed on 17th January, 2011, while that of CA/MK/61A/2011 was filed on 4th April, 2011. It is my firm view that, both appeal derive from the judgment of 15th December, 2010. However, the events leading to the appeal No. CA/MK/61A/2011 were initiated earlier in time, that is, first on 21st December, 2010 when the respondent filed motion No. 1470m/2010 applying amongst others, for an order of the trial Court extending the time within which the appellant can bring an application to set aside the judgment under scrutiny and secondly on 29th December, 2010, when the motion No. 1491m/2010 for an order of the trial Court to set aside the default judgment of 15th December, 2010 were still pending. While on 17th January, 2011, the appellant filed the instant appeal against the same judgment of the trial court it was already seeking to have the said two motions set aside. The two motions having been consolidated with the agreement of both parties and hearing of the two motions commenced on 24th January, 2011 and ruling in respect thereof was delivered on 31st March, 2011. The appellant went further to lodge an appeal against the ruling on 4th April, 2011, because the learned trial Judge refused to set aside the judgment under fire and despite the fact that, the earlier appeal against that main judgment, filed on 17th January, 2011 was still pending. How best can one describe these processes initiated by the appellant? There is no doubt that, the appellant has instituted these multiple actions against the respondent concurrently and simultaneously, all geared at nullifying the main judgment of the trial Court delivered against the appellant on 15th December, 2010, in an action filed against it by the respondent. That is all. What is more, there is nothing in the printed record of the instant appeal to show that the appellant has any intention to discontinue any of the two appeals. On the contrary, the appellant's intention to proceed with the multiple matters is palpable. Indeed, the learned senior counsel for the appellant has made it clear in his submissions that, the appellant is constitutionally and legally entitled to pursue the two appeals simultaneously. With due respect to the learned senior counsel, this stance is somewhat not only novel but weird. It seems to me from the said stance that, the essential ingredients of abuse is complete, conclusive and the abuse is made out. This stance is clearly indicative of an intention to irritate, annoy and harass not only the respondent, but indeed this court by instituting a multiplicity of appeals.
I consider it apposite to bring to the fore the very sound reasoning of Karibi-Whyte, J.S.C. Rtd in the case of: NV. Scheep v. MV.S. Araz (supra) that:
...the legal concept of the abuse of the judicial process or the abuse of the procedure of the court is very wide. The scope and content of the circumstances of the material facts and conduct which will result in such abuse is infinite in variety. It does not appear that the category can be closed. New unforeseen conduct from the stratagem of plaintiffs can give rise to the abuse. An abuse may be constituted through a proper and legitimate conduct in bringing actions even in the exercise of an established right in the manner or time of instituting actions. It may also be constituted by irregularities in the pursuit of actions......The abuse lies in the multiplicity of the actions rather than in the exercise of the right. See also Kotoye v. Saraki (1991) 9 NWLR (Pt. 264) 156. (The underlining is supplied by me for emphasis)
This is the position in the instant matter, yea, the appellant has an unalloyed right to appeal any decision of court delivered against it, but this must be within acceptable legal principles. In any event, the respondent is in the same vein entitled to not be vexed, oppressed and abused by processes of the court.
In the case of Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) p.154, the Apex Court on the duty of the Courts to arrest an unnecessary drift by any person pursuing a litigation before them, stamped a mark of approval on and quoted "in extenso" the dictum of Ayoola, J.C.A. (as he then was and later JSC now Rtd) in an earlier case of: Globe Motors Holdings Ltd. v. Honda Motor Co. Ltd. (1998) 5 NWLR (Pt. 550 ) p.373 at p.381, paras. C - G & H and p.382, para. B, as follows:
It has been brought to our notice in the course of argument that an appeal in which the same issues as to jurisdiction as in the present appeal will be canvassed and in which the parties and subject-matter of the proceedings are substantially the same has been fixed for hearing on 16th March, 1998. It is the interest of justice and, I dare say, of the parties that the hearing of this appeal be accelerated and that the filing of briefs be dispensed with. In the result the filing of briefs should be dispensed with.
The outstanding question is whether an interlocutory injunction should be granted as sought by the defendant. There is no doubt that the jurisdiction of this court to grant an injunction is exorbitant. However, when an injunction is sought as prayed for in the present proceedings from taking or prosecuting actions, it is a jurisdiction that must be exercised with great caution and after strong grounds have been shown to justify a restriction on an individual's right of access to the court for the determination of his rights.
The court must be satisfied that the party sought to be restrained has embarked upon a course of abuse of process of the court and an abuse of freedom of access to the court. An instance of such abuse is in the form of vexatious and oppressive actions. Another instance is when an action is instituted deliberately to circumvent the cause of justice and to bring the judicial process into ridicule and contempt. The Constitution can never be seen to be protecting the use of judicial process to undermine respect for law and integrity of the Courts. Any action or course of conduct that is seen designed to introduce anarchy in the judicial system must be dealt with appropriately.
In the instant case, the plaintiffs while the order of this court still subsists rushed to the court below to seek orders which are in direct conflict with the court.
The plaintiffs conduct in this case prima facie shows that they have manifested scant regard for the proper use of the judicial process and may have determined to abuse that process.
The readiness of the Federal High Court to issue ex parte injunctions in such a case as this shows that courts need to be more alert in safeguarding the judicial process from abuse. To issue far reaching ex parte orders without regard to its consequences and without adequate inquiry does not show due apprehension of a court's responsibilities in the awesome powers vested in it in making orders of injunctions.
In my view, this court will be remiss in its duties if it does bring it home to parties that while all sorts of unethical behavior may be regarded as cleverness in the market place, such is not permissible in the legal system of our country. In the present case the conduct of the plaintiff's prima facie indicated a determination of the plaintiff's to frustrate and abuse the judicial process: (The underlining is supplied by me for emphasis)
Talking further about the Constitution of the Federal Republic of Nigeria, 1999, as amended, vesting in the appellant a right of appeal under its Section 241 (1)(a) it is apposite to say that, Section 6(a) of the same Constitution confers on all superior courts of record of which this Court is one, all inherent powers and sanctions of a court of law. One of such is the power to nip in the bud any litigation that is capable of causing chaos and embarrassment among litigants and consequently the courts themselves. No litigant would be allowed to portray the courts as a lame duck arbiter. In the case of: Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) p. 126, the Apex court succinctly captured this point on the attitude of Superior Courts to abuse of court process thus:
Now inherent jurisdiction or power is a necessary adjunct of the powers conferred by the rules and is invoked by a court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused. One most important head of such inherent powers is abuse of process, which simply means that the process of the courts must be used bona fide and properly and must not be abused. (The underlining is supplied by me for emphasis)
There is no doubt in my mind that, this appeal is faulty, it is an abuse of the process of this court. The appeal must be terminated forthwith.
The law is settled beyond peradventure that, when the charge of abuse of process is established, the only course open to the court is to make an order of dismissal of the action/appeal. See the cases of: (1) Arubo v. Aiyeleru (supra) at p.17, paras. E - G and (2) Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt. 1224) p.1 at p.33 paras. A - E. In the case of: Umeh v. Iwu (2008) 8 NWLR (Pt. 1089) p.225, the Apex Court had the following to say on this point thus:
It is settled law that generally abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject-matter and on the same issues. See Ogoejeofo v. Ogeofo (supra) and Okafor v. Attorney-General of Anambra State (supra). The bottom line of these authorities in regard to abuse is that to institute an action during the pendency of another suit claiming the same relief is an abuse of Court process and the only course open to the court is to put an end to the suit. See Arubo v. Aiyeleru (supra). It does not matter whether the suit is on appeal, the subsequent action would constitute an abuse of process (The underlining is supplied by me for emphasis)
Further in the case of: African Re. Corp. v. J.D.P. Const. (Nig.) Ltd. (2003) 13 NWLR (Pt. 838) p.609, the Apex Court made the following sharp statement that:
Where the court comes to the conclusion that its process is abused, the proper order is that of dismissal of the process.
In conclusion, having held that this appeal is an abuse of the process of this Court, I am vested with the legally bounden power indeed I have the duty to dismiss the appeal.
In effect, the preliminary objection of the learned counsel for the respondent succeeds, even on the establishment of the charge of abuse of process against the appeal. In the case of: Nwagu v. Chima (2011) LPELR-9190, this Court relying on the case of: Afribank Plc. v. Akwara (2006) 5 NWLR (Pt. 974) p. 619, held that a notice of preliminary objection stands on its own entirely because if it is upheld, it has the effect of terminating the appeal. On this note, I am of the firm view and hold that, at this juncture, it will not serve any useful purpose if I go ahead to consider the rest issues raised both in the notice of preliminary objection and the substantive appeal. For to do this will amount to an academic exercise which courts are not allowed to engage in understandably because such exercise is considered moot, worthless, futile and most importantly to avoid a waste of precious judicial time.
Consequent upon my above line of reasoning and conclusion, this appeal fails and is hereby dismissed accordingly for being an abuse of the process of this Court.
The sum of Fifty Thousand Naira (50,000) costs is awarded in favour of the respondent and against the appellant.
MOHAMMED AMBI-USI DANJUMA, J.C.A.:
I agree that the appeal must fail for being an abuse of the process of this court and in consequence, I adopt the lead judgment and the consequential order as to cost made therein.
OBANDE FESTUS OGBUINYA, J.C.A.:
I have the opportunity to peruse, in advance, the lucid judgment delivered by my learned brother, Oyebisi F. Omoleye, J.C.A., and I am in total agreement with her reasons and conclusion.
In respect of the default judgment, the lower court delivered on 15/12/2010, two judicial avenues are available to the appellant to challenge it. The one is to appeal against it. The other is to apply to set it aside upon grounds cognizable in law. It was the appellant's over ambition to enjoy the two rights, contemporaneously, that made his appeal, which was later in time, to be enmeshed in the intractable web of abuse of court process. In the eyes of the law, being later in time, it is the appeal that has to vacate the bowel of this court, see Igbeke v. Okadigbo (2013) 12 NWLR (Pt. 1368) 225. The law gives this court the unbridled licence to arrest and banish any abuse of court process by penalizing it with dismissal. This, clearly, is the fate of the appeal which is, totally, wanting in bona fide.
In the light of the foregoing, added to detailed analyses in the leading judgment, I, too, will punish the appeal with dismissal with the same orders made therein.