ZENITH BANK PLC & ANOR v OLIMPEX NIGERIA LIMITED

ZENITH BANK PLC & ANOR v OLIMPEX NIGERIA LIMITED


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 11TH MAY, 2018


Appeal No: CA/L/252/2015
CITATION:

Before Their Lordships:

TIJJANI ABUBAKAR, JCA

BIOBELE ABRAHAM GEORGEWILL, JCA

JAMILU YAMMAMA TUKUR, JCA


BETWEEN

ZENITH BANK PLC
ZENITH SECURITIES LIMITED

(APPELLANTS)

AND

OLIMPEX NIGERIA LIMITED

(RESPONDENT)


PRONOUNCEMENTS


A. PRACTICE AND PROCEDURE
1. Preliminary Objection – Obligation to resolve a preliminary objection raised on appeal before hearing the substantive appeal

Whether a preliminary objection raised on appeal must be resolved before hearing the substantive appeal

“The principle of law that where in a suit or an appeal, a preliminary objection is raised, the Court is bound to hear and determine the preliminary objection before the main suit or appeal is heard is well entrenched and firmly established by a number of judicial decisions both in the Supreme Court and this Court. The Court will only proceed to determine the substantive suit or appeal, if the objection does not completely and totally bring the suit or appeal to the end, where a determination of the preliminary objection decides the suit or appeal completely, then the business of the Court is over and there is no necessity to proceed to determine the suit or appeal on the merit. See ALLANAH Vs. KPOLOKWU (2016) LPELR-40724 (SC) pg. 10-11, paras. D – A and MUSA & ANOR vs. IBRAHIM (2017) LPELR- 43101 (CA) pg.5, paras. A – D.”Per ABUBAKAR, JCA read in context

2. Preliminary Objection –

Whether a preliminary objection is filed only against the hearing of an appeal and not against one or more grounds of appeal

“Learned Counsel for the Respondent in arguing the objection strayed into the substantive appeal and challenged paragraphs 4;23-4;30 of the Appellant’s brief of argument, this is touching on the substantive appeal, and the argument is best reserved for the substantive appeal, this is because the law is settled that the purpose of preliminary objection is to challenge the competence of the Court to hear and determine an appeal and not to challenge particular grounds of appeal or issues. In ASIKPO & ANOR vs. GEORGE & ANOR (2012) LPELR-9330 (CA) pg.13-14, paras. D – C, this Court held as follows:

“An objection which does not challenge the competence of an appeal but only challenge one or some of the grounds or issue raised in the appeal, does not challenge the hearing of the appeal as provided by the provisions but only attacks or complaints about some grounds or issues which even if successful, does not terminate the proceedings or hearing the appeal. Such an objection does not fall within the provisions of Order 10 Rule 1 above and so are not applicable to it. It is an objection a party (Respondent) is entitled to raise at the hearing in his brief of argument as a point of law to be considered in the determination of the appeal…”
See: also GUTTING vs. DAVWANG (2013) LPELR- 21921 (CA) Pg.43, Paras. B-F and the Supreme Court decision in NNPC vs. FAMFA OIL LTD (2012) LPELR-7812 (SC) pg.32-33, paras. G – E where RHODES-VIVOUR JSC
held that “…Preliminary Objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal.”
In my view therefore, the preliminary objection put up by the Respondent that the issues for determination do not flow from the Grounds of Appeal is without merit. The preliminary objection is therefore lacking in merit it is hereby dismissed. I will proceed to determine the substantive issues nominated for determination.”Per ABUBAKAR, JCA read in context

3. Abuse of Court Processes – Actions amounting to abuse of court processes

What constitutes abuse of Court process

“Let me first state that what amounts to an abuse of Court process has been decided by the Supreme Court and this Court in seemingly endless judicial decisions. In IKINE Vs. EDJERODE & ORS [2001] 12 SC (Pt.II) 94; (2001) LPELR- 1479 (SC) Pg.50, Paras. E – F the Supreme Court per OGUNDARE JSC held that: “what is meant by abuse of process of Court? it simply means that the process of the Court has not been used bonafide and properly.”

I am of the view that the utmost consideration in determining whether a process of Court is an abuse of judicial process or not is whether that process will result in irritation, annoyance and harassment of the opponent and whether such process will interfere with the proper administration of justice. See AFRICAN CONTINENTAL BANK PLC vs. NWAIGWE [2011] 7 NWLR 380; (2011) PE -208 (SC) Pg. 12-13, Paras. F – B and SARAKI & ANOR Vs. KOTOYE [1992] NWLR (Pt.264) 156; (1992) PE R-3016 (SC) where KARIBI-WHYTE JSC held that: “…the employment of judicial process is only regarded as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice…” Abuse of Court process includes but is not limited to situations where the same issues and subject matter are re-litigated upon between the same parties. I refer to the decision of this Court in DANA AIRLINES LTD Vs. BAMAIYI & ANOR (2017) LPELR-43054 (CA) Pg. 25-28, Paras. E – A where this Court held as follows:

“Now, the term ‘abuse of Court Process’ is often seen to be synonymous with multiplicity of suits or of Court processes, 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 or processes is not the only way by which abuse of court process could be constituted.
…what would constitute or amount to abuse of Court process is very diverse, imprecise and thus subject to infinite or indefinite considerations. In considering whether or not an action constitutes an abuse of Court process, the Court is to critically consider the peculiar facts and circumstances of each case in which the issue of abuse of Court process is raised to determine whether in the peculiar circumstances of the affected case, the act of the party complained of constitutes an abuse of Court process…”Per ABUBAKAR, JCA read in context

4. Abuse of Court/Judicial Processes –

Appropriate order to make where a suit or process constitutes an abuse of Court process

“It is my view that by instituting this present suit against the Appellants with the Respondent’s shares being the subject matter of litigation, the Respondent has embarked on an attempt to render nugatory the Application for Mareva Injunction in suit No:LD/768/2012 which was aimed at the Shares of the Respondents therein with the Respondent herein. In the circumstance and the peculiar situation of the instant case, I have no doubt in coming to the conclusion that the institution of the instant suit by the Respondent will in effect annoy, irritate and harass the Appellants particularly the 1st Appellant who filed an
Application for orders of the Court against the Respondent in another suit in respect of the shares of the Respondent. I therefore hold that the instant suit amounts to an abuse of judicial process which is capable of interfering with the efficient and effective administration of justice. The first issue is therefore resolved in favour of the Appellants.

It is obvious, having regard to the conclusion reached on issue one, that the determination of the second issue relating to the question as to whether the learned trial judge was right to have directed the Respondent to convert the Originating Summons to pleadings after taking argument in respect of the Originating Summons, has become needless, and therefore academic. But, being aware of the admonition of the Supreme Court that this Court must consider and pronounce on every issue submitted for determination having regards to chains of judicial decisions like the decisions in, ADEGBUYI vs. APC & ORS (2014) LPELR 24214 (SC); and DASUKI vs. FRN (2018) LPELR 43897 (SC) and since the position of the law regarding this issue is firmly settled, I shall make a pronouncement on the second issue to satisfy the requirements of the law.
As rightly submitted by learned Counsel for the Respondent, the correct procedure to adopt in cases begun by originating summons and an objection is raised to the jurisdiction of the Court, is to consider the arguments canvassed with respect to the objection alongside the substantive matter. This position of the law has been settled in a long line of authorities including ADELEKE Vs. OYO STATE HOUSE OF ASSEMBLY (2006) 16 NWLR [Pt.1096] 508; AMADI vs. NNPC (2000) 10 NWLR (Pt.674) 75, even though the Court can take arguments in respect of the substantive matter at the time it is taking the argument regarding the preliminary objection, it is the law that the Court must refrain from making pronouncement on the substantive matter at the stage of determination of the objection challenging the competence of the suit. See NWANKWO & ORS Vs. YAR’ADUA (2010) LPELR- 2109 (SC); A.G., KWARA STATE & ANOR vs. LAWAL & ORS (2017) LPELR – 42347 (SC). Therefore, where, as in the instant case, an objection is filed challenging the competence of the procedure adopted by the Claimant to commence the suit, the Court must, even though it has taken argument in respect of the substantive matter, caution itself and refrain from making pronouncement on the merit of the suit at that stage. This can only be done by the Court upon a determination of the objection and its dismissal. I believe this was the procedure adopted by the learned trial judge in the instant case, and it is in my humble view correct.

At pages 498 of the records of appeal, the earned trial judge reached a conclusion on the Appellant’s objection that “the suit as commenced by the Claimants/Respondent (sic) procedurally incompetent” having regard to the fact that the suit was commenced by Originating Summons, which is procedurally incompetent, upon a finding that facts are in dispute, rather than strike out the Originating Summons, the learned trial judge directed that the Originating Summons be converted to Writ of Summons and parties were ordered to file their respective pleadings. See pages 488 to 499 of the record of appeal. The law is trite that the proper order a trial Court should make after a finding that a suit ought to have been commenced by originating summons is to treat the originating summons as a writ of summons and order the parties to file pleadings, See UBA Vs. EKPO (2003) 12 NWLR [Pt.834] 332; ANATOGU Vs. ANATOGU (1197) 9 NWLR [Pt.519] 49; ESEZOOBO Vs. NSTIF & ORS (201 ) LPELR – 9282 (CA); OSSAI Vs. WAKWAH (2006) 4 NWLR (Pt.969) 208; GOVT., CRS VS. ASSAM (2008) 5 NWLR (PT.1081) 658 and DAPIALONG Vs. LALONG (2007) 5 NWLR (Pt.1026) 199. Where the consensus is that the order directing the parties to file pleadings made by the trial judge is appropriate in the circumstances of the case.

Nevertheless, the law is well settled that where the Court comes to the conclusion that there is an abuse of Court process, the proper order to make is that of dismissal of the offending process which amounts to an abuse. See AFRICAN REINSURANCE CORPORATION Vs. JDP CONSTRUCTION (NIG) LTD [2003] 13 NWLR (Pt.838) 609; (2003) LPELR-215 (SC) P9.29, Paras. C-D where the Supreme Court held that: “where the Court comes to the conclusion that its process is abused, the proper order is that of dismissal of the process”. See also the recent decisions of this Court in OGBONMWAN Vs. AGHIMIEN (2016) LPELR-40806 (CA) Pg.20, Paras. A – B and ZIKLAGSIS NETWORKS LIMITED Vs. ADEBIYI & ORS (2017) LPELR-42899 (CA) Pg. 29.31, Paras. E-D. In the light of the foregoing therefore, having found that the instant suit amounts to an abuse of Court process in the light of Suit No. LD/3639/2014; the proper order to make is that of dismissal of the suit, the, suit is therefore accordingly dismissed.”Per ABUBAKAR, JCA read in context


LEAD JUDGMENT DELIVERED BY ABUBAKAR, JCA


This appeal is against the Ruling of the High Court of Lagos State, in the Lagos Division delivered by Okikiolu-Ighile J. on the 6th day of March, 2015 in suit No:LD/3639/2014 as found at pages 488 -499 of the Records of Appeal. The Respondent commenced the suit at the Lower Court against the Appellants via an Originating summons dated the 21st day of February, 2014 as found at pages 1-52 of the Records of Appeal. In response, the Appellants entered a conditional appearance and filed a Counter-Affidavit to the Originating Summons as well as a Notice of Preliminary Objection on the 14th April, 2014 as contained at pages 52 – 392 of the Records of Appeal. The Appellants in turn filed a Further Affidavit and reply on Points of Law found at pages 437- 499 of the Records of Appeal. The Lower Court heard arguments of the parties in litigation as constituted before us now on the 11th day of December, 20 4. On the 6th day of March, 2015, the Lower Court delivered its Ruling wherein the Preliminary Objection filed by the Appellants was dismissed.

The dismissal of the preliminary objection miffed the Appellants and on the 19th day of March 2015, they filed Notice of appeal. The Appellants notice of appeal is found at pages 500-513 of the Records of Appeal. The Appellants’ Brief of Argument was filed on the 13th day of July, 2016 by learned counsel Dapo Oduwole, Esq. the brief was deemed as properly filed and served on the 17th day of January, 2018. The Respondent though learned counsel Abiola Ogundare filed Respondent’s brief of argument on the 15th day of May, 2017, it was deemed as properly filed and served on the 17th day of January, 2018. The Appellants also filed a Reply brief on the 9th day of February, 2018. The Reply Brief was deemed as properly filed and served on the 13th day of February, 2018. Learned counsel for the Appellants crafted two(2) issues for determination from the Appellant’s grounds of appeal. The issues are set out as follows:

1. Having regard to Suit No. LD/768/2012: Zenith Bank Plc v. Mr. Joseph Penamou & 3 Ors, whether the Lower Court was wrong to have held that Suit No.LD/3639/2014: Olimpex Nigeria Limited v. Zenith Bank Plc. & Anor was not an abuse of Court process?

2. Whether the Lower Court was wrong to have directed the Respondent to convert the Originating summons to pleadings after taking argument in respect of the Originating Summons.

The Respondent adopted the two issues distilled by the Appellants above. However, before considering the submissions of counsels on these issues, it is expedient that this Court must first consider the preliminary argument of the Respondent. The Respondent contended that Grounds 2 & 3 of the Notice of Appeal and the Appellants’ argument in paragraphs 4.23 – 4.30 of the Appellants’ Brief of Argument are incompetent and should be dismissed. Counsel argued that an issue for determination in any appeal must relate, arise or flow from a ground of appeal and must place before the Court the grievance of the parties. Learned counsel submitted further that any issue for determination in any appeal which is not related to or based on a ground or grounds of appeal is deemed abandoned. Learned counsel referred to the following cases: AGBITI Vs. THE
NIGERIAN NAVY (2011) LPELR-2944 (SC) Pg.24, Paras. A-E; OWNERS OF M.V. GONGOLA HOPE Vs. S.C. (NIG) LTD (2007) LPELR-2849 (SC) pg.19, paras. B – C; JOHN vs. STATE (2016) LPELR-40103 (SC) Pg.4, Para. D; CONTRACT RESOURCES NIGERIA LIMITED Vs. STANDARD TRUST BANK LIMITED (2013) LPELR-19934 (SC); OKONTA vs. PHILIPS & ORS [2010] 18 NWLR (PT.1225) 320 SC; (2010) LPELR-1373 (SC); AKERE & ORS VS. THE GOVERNOR OF OYO STATE & ORS (2012) LPELR-7806 (SC) Pg.24-25, Paras F-B; NWANKWO & ORS VS. YAR’DUA & ORS (2010) LPELR-2109 (SC) Pg.75, Paras. B – F; DAIRO VS. UBN PLC & ANOR (2007) 7 SC (Pt.II) 97; and OMO vs. JSC, DELTA STATE [2000] 7 SC (Pt.11) 1.

Learned counsel further referred to AGBASO Vs. OHAKIM & ORS (2008) PELR-3652 pg.44, paras. A-C; TUKUR vs. GOV RNMENT OF TARABA STATE [1997] 6 NW R (Pt.510) 549; NEWSWATCH COMMUNICATION LTD Vs. ATTA [2000] 2 NWLR (Pt.646) 592 and BENDEL FEED & FLOUR MILL LTD Vs. NIGERIA INTERNATIONAL MERCHANT BANK LTD [2000] 5 NWLR (Pt.655) 29 to submit that issues No. 1 and 2 in the Appellants’ Brief do not arise/or flow from Grounds 3 & 2 of the Notice of Appeal. Counsel further referred to F. G. ONYENWE MOTORS LTD vs. FBN (MERCHANT BANKERS) LTD (2013) LPELR-21878 (CA) pg.17, Paras. C – E; and ESIRI Vs. ORHORO (2008) ALL FWLR (Pt.399) Pg.532 at 545, Paras. A -B to submit that the Appellants’ argument in paragraphs 4.23 – 4.30 of the Appellants’ Brief do not arise/flow from issue No. 2 in the Appellant’s Brief.

Learned counsel for the Respondent contended that the Appellants have failed to canvass any argument in support of ground 3 of the Notice of Appeal in their Brief of argument. Counsel urged this Court to hold that Grounds 2 & 3 are deemed abandoned because no issues were distilled from the said grounds and that this ourt should discountenance the arguments in paragraphs 4.23 – 4.30 of the Appellants’ Brief of Argument for reasons of incompetence.

In response to the Respondent’s submission, the learned counsel for the Appellants in the Reply Brief submitted that part of the contention of the Appellants before the Lower Court was that the suit being an abuse of judicial process of the Court is liable to be dismissed but the Lower Court refused the Appellants contention and rather ordered that the Originating Summons be converted to Pleadings. Learned counsel submitted further that the purport of Ground 3 of the notice of appeal is to challenge the decision of the Lower Court refusing the Appellants’ contention that the suit is an abuse of Court process and that issue No.1 of the Appellants’ Brief therefore flows from Ground 3 of the Notice of Appeal.

Learned counsel further urged this Court to hold that issue No. 2 flows from Ground 2 of the Notice of Appeal. Counsel argued that the procedure adopted by the Lower Court in ordering the Appellants to convert the Originating Summons to pleadings after having heard and taken arguments on the Originating Summons is equal to creating a situation where same issue would be submitted for adjudication twice. Counsel submitted that the proper Order for the Court was either to have granted or refused the Originating Summons by dismissing or striking same out. Learned counsel further submitted that Ground 3 of the Notice of Appeal was argued under issue No. 2 and that the argument in paragraphs 4.23 – 4.30 of the Appellants’ Brief of Argument are to the effect that the Court having heard the originating summons on merit ought to have dismissed or struck same out being an abuse of judicial process. Counsel urged this Court to dismiss the Respondents preliminary objection.

RESOLUTION OF PRELIMINARY OBJECTION

The principle of law that where in a suit or an appeal, a preliminary objection is raised, the Court is bound to hear and determine the preliminary objection before the main suit or appeal is heard is well entrenched and firmly established by a number of judicial decisions both in the Supreme Court and this Court. The Court will only proceed to determine the substantive suit or appeal, if the objection does not completely and totally bring the suit or appeal to the end, where a determination of the preliminary objection decides the suit or appeal completely, then the business of the Court is over and there is no necessity to proceed to determine the suit or appeal on the merit. See ALLANAH Vs. KPOLOKWU (2016) LPELR-40724 (SC) pg. 10-11, paras. D – A and MUSA & ANOR vs. IBRAHIM (2017) LPELR- 43101 (CA) pg.5, paras. A – D.

I have carefully considered the issues for determination distilled from the grounds of appeal by the Appellants and adopted by the Respondent, I am of the view that the issues arise from the Grounds of appeal as contained in the Notice of Appeal dated 19th March, 2015 contained at pages 500-513 of the Records of Appeal. Issues No 1. &2. In the Appellant’s Brief are as follows:

1. Having regard to suit No. LD/768/2012: Zenith Bank Plc v. Mr. Joseph Penamou & 3 Ors, whether the Lower Court was wrong to have held that suit No.LD/3639/2014: Olimpex Nigeria Limited v. Zenith Bank Plc. & Anor was not an abuse of Court process?

(Grounds 1 and 3 of the Notice of Appeal)

2. Whether the Lower Court was wrong to have directed the Respondent to convert the originating summons to pleadings after taking argument in respect of the Originating Summons.

I will now proceed to reproduce Grounds 1 to 3 as contained in the Notice of Appeal without their respective particulars as follows:

1. The learned trial Judge erred in law when His Lordship held at page 8 of the judgment as follows:

“Having found that the parties and the claims are not the same. I hereby hold that the suit is not an abuse of Court process”

2. The learned trial Judge erred in law when His Lordship held at page 10 of the judgment as follows:

“I have found from the averments in the various Affidavits and counter Affidavit that the Court has not only been called upon to interpret or construe the contract between the claimant and the 1st Defendant, and the attached Exhibits marked Exhibit C1, C2, C3, E1, E2 and E3”

3. The learned trial Judge erred in law when His Lordship held at page 11 of the judgment as follows:

“This Court therefore finds this suit as commenced by claimants/Respondent (sic) procedurally incompetent. Ordinarily, having come to the above conclusion, the Court need do no other but strike out the originating summons, I will however not do this as it is trite that where a Court held that a suit has been wrongly commenced originating summons this will not lead to a striking out or dismissal of the suit. The Court will only order parties to file pleadings.”

It is clear from the foregoing that the two issues for determination flow from the grounds of appeal which challenge the findings of the Lower Court.

Learned Counsel for the Respondent in arguing the objection strayed into the substantive appeal and challenged paragraphs 4;23-4;30 of the Appellant’s brief of argument, this is touching on the substantive appeal, and the argument is best reserved for the substantive appeal, this is because the law is settled that the purpose of preliminary objection is to challenge the competence of the Court to hear and determine an appeal and not to challenge particular grounds of appeal or issues. In ASIKPO & ANOR vs. GEORGE & ANOR (2012) LPELR-9330 (CA) pg.13-14, paras. D – C, this Court held as follows:

“An objection which does not challenge the competence of an appeal but only challenge one or some of the grounds or issue raised in the appeal, does not challenge the hearing of the appeal as provided by the provisions but only attacks or complaints about some grounds or issues which even if successful, does not terminate the proceedings or hearing the appeal. Such an objection does not fall within the provisions of Order 10 Rule 1 above and so are not applicable to it. It is an objection a party (Respondent) is entitled to raise at the hearing in his brief of argument as a point of law to be considered in the determination of the appeal…”

See: also GUTTING vs. DAVWANG (2013) LPELR-21921 (CA) Pg.43, Paras. B-F and the Supreme Court decision in NNPC vs. FAMFA OIL LTD (2012) LPELR-7812 (SC) pg.32-33, paras. G – E where RHODES-VIVOUR JSC held that “…Preliminary Objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal.”
In my view therefore, the preliminary objection put up by the Respondent that the issues for determination do not flow from the Grounds of Appeal is without merit. The preliminary objection is therefore lacking in merit it is hereby dismissed. I will proceed to determine the substantive issues nominated for determination.

SUBMISSIONS OF COUNSEL ISSUE ONE
On the first issue, learned counsel for the Appellants submitted that Suit No. D/768/2012: Zenith Bank Plc v.

Mr. Joseph Penamou & 3 Ors had been filed prior to the instant suit and that on the 22nd of June, 2012, the 1st Appellant applied for a Mareva Injunction against the Respondent and other parties in that Suit which the Respondent was aware of before proceeding to file the instant suit on the 21st of February, 2014 in an attempt to foist a fiat accompli on the pending Suit No. LD/768/2012: between Zenith Bank Plc v. Mr. Joseph Penamou & 3 Ors.

Learned counsel referred to R-BENKAY [NIG.] LTD Vs. CADBURY (NIG.) PLC. [2012] 9 NWLR (Pt.1306) 596 at 616H – 618A and submitted that the lower erred and wrongly applied the principles of abuse of Court process when the Court held that the Originating Summons was not an abuse of Court process on the ground that the parties were different.

Learned counsel referred to grounds (iii) – (viii) of the Notice of Appeal filed before the Lower Court contained at page 222 of the Records of Appeal and paragraph 14 of the Affidavits in support of the Appellants Notice of Preliminary Objection at the Lower Court contained at page 228 of the Records of Appeal. Counsel argued that though on the face of it, the parties in Suit No. D/768/2012: Zenith Bank Plc v. Mr. Joseph Penamou & 3 Ors are not exactly the same with the parties in the instant suit, but that a calm look at Exhibit D04 at pages 240-317 of the Records of Appeal which is the Application for Mareva Injunction filed by the 1st Appellant, will reveal that the Respondent herein is one of the parties listed as third party in that suit and that the 2nd and 3rd Respondents in that suit were represented by the same counsel representing the Respondent in the instant suit.

Learned counsel for the Appellants contended that the instant suit was initiated essentially to overreach Suit No.LD/768/2012: Zenith Bank Plc v. Mr. Joseph
Penamou & 3 Ors which the Respondent had knowledge of having been named as one of the third parties in the Mareva Injunction filed in that suit. Learned counsel referred to DINGYADI Vs. INEC [2001] 44 NSCQR 301 at 340 and SARAKI & ANOR vs. KOTOYE [1992] NWLR (Pt.264) 156 to submit that the instant suit is an abuse of Court process and that abuse of Court process does not only arise when the parties in a new suit and another pending suit are the same, but that where it has been shown that a suit was filed mala fide or was initiated to annoy, it could be termed an abuse of judicial process.

Learned counsel further referred to the letter of offer of credit facility dated 29th October, 2008 at page 94 of the Records of Appeal granted in favour of Silv and Limited; pages 13-16 of the Records of Appeal to confirm that the shares of the Respondent herein form part of the Security Facility advanced to Niger pet Company Limited; the letter of credit facility dated 29th October, 2008 granted in favour of Orion Marine Limited; and to paragraph 6 of the 1st Appellant’s Application for Mareva Injunction in Suit No.LD/768/2012: Zenith Bank Plc v. Mr. Joseph Penamou & 3 Ors to submit that the Defendants in that suit are Directors of the Respondent herein as well as of the other related companies.

Learned counsel reiterated that the Respondent’s Originating Summons in the instant suit was initiated in bad faith in an attempt to overreach the pending Application for Mareva Injunction in Suit No. LD/768/2012:
Zenith Bank Plc v. Mr. Joseph Penamou & 3 Ors and therefore amounts to an abuse of Court process. Learned counsel referred to R-BENKAY (NIG.) LTD Vs. CADBURY (NIG.) PLC. (Supra) at Pg.146, C – F to urge this Court to so hold and resolve issue No.1 in favour of the Appellants and dismiss the Respondent’s suit.

In Response to the Appellants’ submissions on this issue, learned counsel for the Respondent referred to OBU vs. J.O. OLUMBAMISE PRINTERS LTD (2013) LPELR-20415 pg.28, Paras. A – D and UMEH Vs. IWU [2008] 8 NWLR (pt.1089) 225 SC to argue that for the defense of abuse of Court process to succeed, it must be shown that there is multiplicity of suits between the same parties on the same subject matter and issue. Counsel contended that the parties, the issues for determination and the claims in the instant suit and that of suit No. LD/768/2012: Zenith Bank Plc v. Mr. Joseph Penamou & 3 Ors are not the same. Learned counsel referred to the Respondent’s claims in the instant suit at pages 1 – 3 of the Records of Appeal and 1st Appellant’s claims in Suit No.LD/768/2012: Zenith Bank Plc v. Mr. Joseph Penawou & 3 Ors at pages 242 – 249 of the Records of Appeal.

Learned counsel for the Respondent argued that the gravamen of the 1st Appellant in Suit No. LD/768/2012:

Zenith Bank Plc v. Mr. Joseph Penawou & 3 Ors was premised on the Defendants’ assets and that the 1st Appellant sought for a Mareva Injunction against the Defendants to prevent them from dissipating their assets. Counsel further argued that the said suit was directed against the Defendants, that is Mr. Joseph Penawou, Mr. Oliver Meyer and Mr. Jean-Claude Meyer in their personal capacity while the instant suit was predicated on the action of the 1st Appellant’s attempt to exercise lien on the Respondent’s shares. Learned counsel submitted that the issues for determination in the two suits are not the same and as such this present suit cannot amount to an abuse of Court’s process.

Learned counsel referred to GREEN vs. GREEN (1987) LPELR-1338 (SC) Pg.17, Paras. D – F; FAWEHINMI vs. NIGERIAN BAR ASSOCIATION & ORS (No.2) (1989) LPELR-1259 (SC) and ADAMA BEVERAGES LTD vs. GALLEON (2016) LPELR- 40314 (SC) Pg.37, Paras. A – C to submit that neither the 2nd Appellant nor the Respondent was a party in suit No.LD/768/2012: Zenith Bank Plc v. Mr. Joseph Penamou & 3 Ors and that the Appellants in paragraph 4.01 – 4.03 of the Appellants Brief admitted that the parties are not the same. Counsel further submitted that contrary to the Appellants’ contention, the Respondent’s shares which the Appellants currently hold in exercise of lien cannot be subject of Mareva Injunction because the said shares are assets already in possession of the Appellants and cannot be dissipated.

Learned counsel also argued that the personal action against Mr. Joseph Penawou, Mr. Oliver Meyer and Mr. Jean- Claude Meyer in Suit No. LD/768/2012 cannot preclude the Respondent; a corporate entity from innocently exercising its lawful right of action against the Appellants for impeding the Respondent’s right to deal with its own shares as it desires. Counsel submitted that the Respondent’s suit was instituted in good faith and cannot foist a fiat accompli on Suit No.LD/768/2012: Zenith Bank Plc v. Mr. Joseph Penamou & 3 Ors and that the learned trial Judge was right to hold that this, suit was not an abuse of Court process. Learned counsel urged this Court to resolve this issue in favour of the Respondent.

In Reply, learned counsel for the Appellants referred to pages 353 – 366 of the Records of Appeal and submitted that the Respondent was aware of the pendency of Suit No.LD/768/2012: Zenith Bank Plc v. Mr. Joseph Penamou & 3 Ors and the fact that its shares were pledged as lien for facilities granted to other sister companies and in a bid to foist a fiat accompli on the Lower Court seized with Suit No. LD/768/2012 filed this suit. Learned counsel submitted that the suit was filed to render nugatory the Suit No.LD/768/2012 which is against the Respondent’s privies and in respect of the same subject matter. Counsel referred to JIMOH Vs. AKANDE [2009] 5 NWLR (Pt.1135) 549 at 577, Para D to urge this Court to hold that the suit is an abuse of Court process.

ISSUE TWO

Learned counsel for the Appellant referred to the sole issue for determination nominated by the Respondent before the Lower Court as contained at page 50 of the Records of Appeal and submitted that in the determination of an Originating Summons, the Court is obligated to confine its self to the issues formulated by the Applicant and that the Respondent did not make any reference to any contract as concluded by the Court at page 497 of the Records of Appeal. Learned counsel referred to SPRING BANK Plc. Vs. DOKKIN VENTUR S NIG LTD (2012) LPELR-7983 (CA) and ACHU Vs. C.S.C. CROSS RIVERS STATE [2009] 3 NWLR (Pt.1129) 475 at 507, Paras. E – G to submit that parties are bound by the question put forward by an applicant in an Originating Summons and that the Court having not re-formulated or re-couched could not have read into the issue for determination what was not contained therein.

Learned counsel relied on Order 3 Rule 5 of the High Court of Lagos State [Civil Procedure) Rules, 2012 to submit that the Respondent’s action before the Lower Court was incompetent and the Court having delved into the substantive issue could not have thereafter converted the originating Summons to a Writ of Summons. Counsel argued that the suit is an abuse of Court process on one hand and also incompetent having been commenced by the Originating Summons when it was clear that the subject matter did not fall within the ambit of matters that could be initiated by an Originating Summons. Learned counsel referred to STAR FINANCE & PROPERTY LTD & AN0R vs. NDIC (LIQUIDATORS OF METROPOLITAN BANK) [2012] 10 NWLR (Pt.1309) pg. 22 to submit that the provision of Order 3 Rule 5 of the High Court of Lagos State [Civil Procedure] Rules, 2012 ought to be given its literal meaning.

Learned counsel for the Appellants further argued that the Lower Court having found at page 498 of the Records of Appeal that the suit was procedurally incompetent ought to have struck out the suit. Counsel argued that the learned trial Judge having heard the arguments of parties in respect of the substantive suit could not possibly rehear the matter.

Learned counsel referred to Order 5 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2012 which borders on the Court converting Originating summons to writ of summons to submit that it is not applicable to the instant suit because the Lower Court had already considered the facts in the affidavits in support of the Originating Summons as well as the Counter-Affidavit. Counsel submitted that the only option left for the Lower Court was to strike out the suit. Learned counsel urged this Court to so hold and to resolve this issue in favour of the Appellants.

In response to the above submissions, learned counsel for the Respondent referred to HON. MICHAEL DAPIANLONG & ORS vs. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) LPELR-928 (SC); YAR’DUA & ORS vs. YANDOMA & ORS (2014) LPELR-13509 Pg.50, Paras. A – C; PAM & ORS vs. ABU & ORS (2013) LPELR- 1406 (CA) Pg.31-32, Paras. F – B and NELSON-MOORE & ANOR vs. MEDICINE PLUS LTD & ANOR (2014) LPELR-24089 (CA) pg. 31-32, Paras. F – B to submit that where a Court with competent jurisdiction is faced with an application challenging its jurisdiction, the Court has the jurisdiction to hear or take arguments in respect of the preliminary objection together with the substantive suit.

Learned counsel further referred to S I G M A ENGINEERING & CONSTRUCTION LTD Vs. Nigeria AIRWAYS LTD & ORS (2013) LPELR-20188 Pg.25-26, Paras. D – B to submit that the learned trial Judge must not make any pronouncement on the substantive suit whenever the appropriateness of any Originating Summons is being challenged. Learned counsel referred to pages 486-489 and 498-499 of the Records of Appeal to contend that the trial Judge in the instant case did not make any pronouncement or delve into the substantive suit but merely exercised the power to convert the Originating Summons to Writ of Summons rather than striking out or dismissing the Respondent’s suit having found that the Originating Summons was not the appropriate mode of commencing the suit, Counsel submitted that for the trial Court to hold otherwise would amount to allowing technicalities to hold sway.

Learned counsel argued that in resolving the Appellants’ preliminary objection, the trial Court only needed to peruse the processes to see if the facts were hostile or in dispute and having found that the facts were in dispute, the trial Judge rightly converted the Originating Summons to Writ of summons as enjoined by law. Counsel submitted that Courts are enjoined at all times to strive towards substantial justice devoid of technicalities and that the Rules of Court aim at the just and expeditious disposition of cases. Learned counsel submitted that the decision of the Lower Court ordering the Respondent to file Writ of Summons is unassailable and urged this Court to resolve this issue in favour of the Respondent.

Learned counsel referred to Order 5 Rule 1(3) of the High Court of Lagos State (Civil Procedure) Rules, 2012; which relates to converting originating summons to writ of summons and said the provisions do not apply to the instant case, Counsel said the decision of the Lower Court is in accord with decision of the Supreme, where the Court held that the proper order a trial Court should make where it finds that the action before it was wrongly commenced by way of originating summons is to order pleadings and not to dismiss such action or pronounce on the merit of the case, Counsel relied on the decisions in OSUNBADE Vs. OYEWUNMI [2007] All FWLR (Pt.368) Pg.1004 at 1015, Paras. D – E (SC); MOSES Vs. ERUWA & ORS (2013) LPELR-21168 Pg.13-14, Paras. F – A; KANU & ANOR Vs. OBETA & ORS (2015) LPELR-24432 Pg.51-52, Paras E – A; UNILORIN Vs. AKINYANJU [2008] All FWLR (Pt.406) Pg. 1989 at 2007-2009, Paras. G – C; NATIONAL BANK OF NIGERIA Vs. ALAKIJA & ANOR (1978) 9 – 10 SC (Reprint) 42; DAGOGO vs. A.G. RIVERS STATE [2000] FWLR (Pt.131) 1956; BPE Vs. REINSURANCE ACQUISITION GROUP LTD & ORS [2008] LPELR-8560 (C A ) P g . 2 9 , P a r a s . C – E ; K W A R A S T A T E POLYTHECNIC, ILORIN & ORS VS. MRS. A. O. OYEBANJI (2007) LPELR-11829 (CA) Pg.75, Paras. A – C; DIN Vs. A.G. FED. [1986] 1 (Pt. 17) NWLR 471; TAIWO vs. OKEOWO [1983] 7 SC 85; GOLDIE EKASA & ORS vs. ALUMINIUM SMELTER CO. OF NIGERIA PLC (2014) LPELR-22658 (CA) Pg.21-22, Paras. G – B; and PDP Vs. ABUBAKAR [No.2) [2007] ALL FWLR (pt.386) pg.711 at 731, paras. E – G, in support of this submission. Counsel urged this Court to resolve this issue in favour of the Respondent.

Finally, counsel urged this Court to hold that the appeal is devoid of merit and deserves to be dismissed, he so urged this Court. Appellant’s reply did not extend to this issue canvassed under issue two.

RESOLUTION

I have read the submissions of counsel for the Appellants and the Respondent and the findings of the Lower Court at pages 494-495 of the Records of Appeal. Let me first state that what amounts to an abuse of Court process has been decided by the Supreme Court and this Court in seemingly endless judicial decisions. In IKINE Vs. EDJERODE & ORS [2001] 12 SC (Pt.II) 94; (2001) LPELR- 1479 (SC) Pg.50, Paras. E – F the Supreme Court per OGUNDARE JSC held that: “what is meant by abuse of process of Court? it simply means that the process of the Court has not been used bonafide and properly.”
I am of the view that the utmost consideration in determining whether a process of Court is an abuse of judicial process or not is whether that process will result in irritation, annoyance and harassment of the opponent and whether such process will interfere with the proper administration of justice. See AFRICAN CONTINENTAL BANK PLC vs. NWAIGWE [2011] 7 NWLR 380; (2011) LPELR-208 (SC) Pg. 12-13, Paras. F – B and SARAKI & ANOR Vs. KOTOYE [1992] NWLR (Pt.264) 156; (1992) LPELR-3016 (SC) where KARIBI-WHYTE JSC held that: “…the employment of judicial process is only regarded as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice…”

Abuse of Court process includes but is not limited to situations where the same issues and subject matter are re-litigated upon between the same parties. I refer to the decision of this Court in DANA AIRLINES LTD Vs. BAMAIYI & ANOR (2017) LPELR-43054 (CA) Pg.25-28, Paras. E – A where this Court held as follows:

“Now, the term ‘abuse of Court Process’ is often seen to be synonymous with multiplicity of suits or of Court processes, 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 or processes is not the only way by which abuse of court process could be constituted.

…what would constitute or amount to abuse of Court process is very diverse, imprecise and thus subject to infinite or indefinite considerations. In considering whether or not an action constitutes an abuse of Court process, the Court is to critically consider the peculiar facts and circumstances of each case in which the issue of abuse of Court process is raised to determine whether in the peculiar circumstances of the affected case, the act of the party complained of constitutes an abuse of Court process…”

Prior to, the filing of the instant suit on the 21st of February 2014 by the Respondent, the 1st Appellant had filed Suit No:LD/768/2012: Zenith Bank Plc v. Mr.
Joseph Penamou & 3 Ors. On the 22nd of June, 2012, the 1st Appellant filed an Application for Mareva Injunction against the Respondent and other parties in that Suit as third parties. The Respondent was aware of Suit No:LD/768/2012 and the fact that the Respondent had been joined as a third party to the Application for Mareva Injunction in the suit. The name of the Respondent was listed at page 240 of the records as one of the parties against whom the 1st Appellant sought for an order of Mareva Injunction in Suit No: LD/768/2012.

A careful look at the Application for Mareva Injunction contained at pages 240-317 of the Records of Appeal would reveal that the 1st Appellant sought several orders of the Lower Court against the Respondent and the other companies listed therein as third parties as it relates to the monies and shares of the companies.

The instant suit which was filed by the Respondent against the Appellants was predicated on the 1st Appellant’s attempt to exercise lien on the Respondent’s shares. I find it difficult to agree with the learned counsel for the Respondent that the parties and that the subject matter in that suit and this suit are not the same.

It is my view that by instituting this present suit against the Appellants with the Respondent’s shares being the subject matter of litigation, the Respondent has embarked on an attempt to render nugatory the Application for Mareva Injunction in suit No:LD/768/2012 which was aimed at the Shares of the Respondents therein with the Respondent herein. In the circumstance and the peculiar situation of the instant case, I have no doubt in coming to the conclusion that the institution of the instant suit by the Respondent will in effect annoy, irritate and harass the Appellants particularly the 1st Appellant who filed an Application for orders of the Court against the Respondent in another suit in respect of the shares of the Respondent. I therefore hold that the instant suit amounts to an abuse of judicial process which is capable of interfering with the efficient and effective administration of justice. The first issue is therefore resolved in favour of the Appellants.

It is obvious, having regard to the conclusion reached on issue one, that the determination of the second issue relating to the question as to whether the learned trial judge was right to have directed the Respondent to convert the Originating Summons to pleadings after taking argument in respect of the Originating Summons, has become needless, and therefore academic. But, being aware of the admonition of the Supreme Court that this Court must consider and pronounce on every issue submitted for determination having regards to chains of judicial decisions like the decisions in, ADEGBUYI vs. APC & ORS (20 4) LPELR 24214 (SC); and DASUKI vs. FRN (2018) LPELR 43897 (SC) and since the position of the law regarding this issue is firmly settled, I shall make a pronouncement on the second issue to satisfy the requirements of the law.

As rightly submitted by learned Counsel for the Respondent, the correct procedure to adopt in cases begun by originating summons and an objection is raised to the jurisdiction of the Court, is to consider the arguments canvassed with respect to the objection alongside the substantive matter. This position of the law has been settled in a long line of authorities including ADELEKE Vs. OYO STATE HOUSE OF ASSEMBLY (2006) 16 NWLR [Pt.1096] 508; AMADI vs. NNPC (2000) 10 NWLR (Pt.674) 75, even though the Court can take arguments in respect of the substantive matter at the time it is taking the argument regarding the preliminary objection, it is the law that the Court must refrain from making pronouncement on the substantive matter at the stage of determination of the objection challenging the competence of the suit. See NWANKWO & ORS Vs. YAR’ADUA (2010) LPELR-2109 (SC); A.G., KWARA STATE & ANOR vs. LAWAL & ORS (2017) LPELR – 42347 (SC). Therefore, where, as in the instant case, an objection is filed challenging the competence of the procedure adopted by the Claimant to commence the suit, the Court must, even though it has taken argument in respect of the substantive matter, caution itself and refrain from making pronouncement on the merit of the suit at that stage. This can only be done by the Court upon a determination of the objection and its dismissal. I believe this was the procedure adopted by the learned trial judge in the instant case, and it is in my humble view correct.

At pages 498 of the records of appeal, the Learned trial judge reached a conclusion on the Appellant’s objection t h a t ” t h e s u i t a s c o m m e n c e d b y t h e Claimants/Respondent (sic) procedurally incompetent” having regard to the fact that the suit was commenced by Originating Summons, which is procedurally incompetent, upon a finding that facts are in dispute, rather than strike out the Originating Summons, the learned trial judge directed that the Originating Summons be converted to Writ of Summons and parties were ordered to file their respective pleadings. See pages 488 to 499 of the record of appeal.

The law is trite that the proper order a trial Court should make after a finding that a suit ought to have been commenced by originating summons is to treat the originating summons as a writ of summons and order the parties to file pleadings, See UBA Vs. EKPO (2003) 12 NWLR [Pt.834] 332; ANATOGU Vs. ANATOGU (1997) 9 NWLR [Pt.519] 49; ESEZOOBO Vs. NSTIF & ORS (2012) LPELR – 9282 (CA); OSSAI Vs. WAKWAH (2006) 4 NWLR (Pt.969) 208; GOVT., CRS VS. ASSAM (2008) 5 NWLR (PT.1081) 658 and DAPIALONG Vs. LALONG (2007) 5 NWLR (Pt.1026) 199. Where the consensus is that the order directing the parties to file pleadings made by the trial judge is appropriate in the circumstances of the case.

Nevertheless, the law is well settled that where the Court comes to the conclusion that there is an abuse of Court process, the proper order to make is that of dismissal of the offending process which amounts to an abuse. See AFRICAN REINSURANCE CORPORATION Vs. JDP CONSTRUCTION (NIG) LTD [2003] 13 NWLR (Pt.838) 609; (2003) LPE R-215 (SC) P9.29, Paras. C-D where the Supreme Court held that: “where the Court comes to the conclusion that its process is abused, the proper order is that of dismissal of the process”. See also the recent decisions of this Court in OGBONMWAN Vs. AGHIMIEN (2016) LPELR-40806 (CA) Pg.20, Paras. A – B and ZIKLAGSIS NETWORKS LIMITED Vs. ADEBIYI & ORS (2017) LPELR-42899 (CA) Pg. 29.31, Paras. E-D. In the light of the foregoing therefore, having found that the instant suit amounts to an abuse of Court process in the light of Suit No. LD/3639/2014; the proper order to make is that of dismissal of the suit, the, suit is therefore accordingly dismissed. In the result therefore, the appellant’s appeal has merit and is hereby allowed. The Ruling delivered by Okikiolu-Oghile, J. of the High Court of Lagos State delivered on 6th March,2015, in suit No. LD/3639/2014 is hereby set aside.

Costs of N100,000.00 is awarded in favour of the Appellants.

GEORGEWILL, JCA

I had the privilege of reading in draft the lead judgment of my learned brother TIJJANI ABUBAKAR, JCA, just delivered with which I agree and adopt as mine. I have nothing more to add.

TUKUR, JCA

I have read in draft the lead judgment just delivered by my learned brother TIJJANI ABUBAKAR, JCA, I agree with the reasoning and conclusion contained therein. I adopt the judgment as mine with nothing further to add.

Appearances:

M. A. Oduwole For Appellant(s)
Babajide Koku SAN with him, Femi Adenitire For Respondent(s)