Louis Okoye V. International Trust Bank Plc. (2007)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A.
This is an appeal against the Judgment of the High Court of Anambra State holden at Onitsha in Suit NO.-0/455/2006.
International Trust Bank Plc. Vs. Louis Okoye. In the said Judgment delivered on 3rd day of March 2006, the trial court gave Judgment in favour of the respondent in the sum of Ten million Naira (N10,000,000.00) with 5% interest thereon from the date of judgment until the final liquidation of the judgment debt.
Dissatisfied with the said judgment the appellant now appealed to this Court.
The Notice of Appeal is made up of two grounds namely:-
“(1) The trial court erred in law when the court contrary to the claim of the Plaintiff which was for the sum of N23,197,916.65 held thus:-
“it is clear from the foregoing that the defendant has no defence to this suit whatsoever. The claim is for a liquidated money demand so this can appropriately be heard as undefended. The court is left with no option but to enter judgment in favour of the Plaintiff bank. The claim is for N23,197,916.65 being the debt due on the overdraft facility granted to Excellent Manufacturers limited as at 26th April 2005.
The Defendant’s liability on the deed of guarantee is limited only to the sum of N10,000,000.00. In my view that is the much the Plaintiff can recover against him.”
Particulars of Error:
(i) The trial Court who found that the plaintiff did not prove the claim of N23,197,916.65 brought against the Defendant was in duty bound with respect to transfer the suit of Plaintiff to the general cause list for hearing instead of entering judgment for the Plaintiff in the sum of N10,000,000.00 not claimed by the Plaintiff.
(ii) The trial court made a case for the plaintiff in entering judgment for the Plaintiff in the sum not at all claimed by the Plaintiff.
(iii) The defendants (sic) raised triable issued when the defendants (sic) proved in the trial court that the Plaintiff was entitled to judgment on the strength of the suit brought by the plaintiff.
(iv) Where there is any fact (as in this suit) to be proved by evidence, the court is enjoined to transfer the matter to the general cause list.
(2) The learned trial Judge erred in law when the subject matter in suit NO.0/455/2005 is an abuse of the suit filed at the instance of the same plaintiff in the Federal High Court Enugu.
Particulars of Error:-
(i) Before constituting this suit in the High Court, the same Plaintiff caused suit to be brought in the Federal High Court Enugu to Cause receiver appointed by the Plaintiff to manage the resources of the Defendant to be managed by the receiver appointed by the Plaintiff until the debt allegedly owed by the Defendant to the Plaintiff is liquidated.
(ii) The suit in the Federal High Court is still pending.
(iii) Court processes are abused (like in this suit) where there are multiplicity of suits in respect of the same subject matter.”
The appellants formulated two issues for determination as follows:-
“(i) Whether the Appellant established a triable issue to be let in to defend the suit.
(ii) Whether it was right for the trial court to enter Judgment for the Plaintiff when the suit before it is an abuse of the suit pending in the Federal High Court, Enugu.”
The respondent also formulated one issue for determination as follows:-
“Whether the suit of the Plaintiff constitutes an abuse of the process of the court considering suit No. FHC/L/CS/769/2004 Between Tamuno Nathan George & Others Vs. Louis Okoye & others.”
At the hearing, learned counsel for both parties adopted and relied on their respective briefs of argument.
Learned counsel for the Respondent raised a preliminary objection, he urged the court to strike out or discountenance the first issue formulated by the Appellant and argument thereon on the ground that the said issue does not emanate or flow from any of the grounds of Appeal. He referred to the following cases:-
– Aja Vs. Okoro (1991) 9-10 SCNJ Page 1 at 11.
– Sekoni Vs. U.T.C. (2006) 3 FWLR Part 323 Page 4246
– Falola Vs. Union Bank of Nigeria Plc. (2005) 21 NSCQR Page 146 at 160.
The Learned counsel to the respondent also drew the attention of the court to the 3rd particular of the first ground raised by the appellant and stated that it does not support the appellant’s case. He then submitted that the appellant cannot complain that he raised triable issue when he stated therein that the Plaintiff was entitled to Judgment.
He therefore urged the court to discountenance the entire argument on issue 1 as same does not emanate from the ground of Appeal.
He also referred to the following cases:- Mba Vs. Agu (1999) 9 KLR Part 90 Page 2655; Stirling Civil Engineering Nig. Ltd Vs. Mahmood Yahaya (2005) 22 NSCQR Page1 at 21; Ogunleye Vs. Adeleye (1992) 10 SCNJ Page 58; Governor of Ekiti State Vs. Osayomi (2005) 1 FNLR Part 250 at 75.
Alternatively, the Learned counsel to the Respondent also joined issues with the Appellant on issue No.1 and contended that it was not stated in the notice of intention to defend whether Excellent Manufacturers Ltd. or the appellant has repaid the facility.
In answer to the Preliminary objection, the learned counsel for the Appellant in his reply brief urged this Court to discountenance the preliminary objection and dismiss same on the ground that it has no merit. He referred to:- Ichie Jerome Anoghalu Vs. Nathan Oraelosu (1999) 10 SCNJ Page 1 at 12. He submitted that when the complaint in ground of appeal is clear and unambiguous and no rule of court is violated, such a ground is competent. He referred to – Stirling Civil engineering (Nig.) Ltd. Vs. Ambassador Mahmood Yahaya (Supra).
The learned counsel for the Appellant also conceded that there was error in stating particular III of Ground A in the Notice of Appeal filed by the appellants, he went further that the omission to include the word not was a slip. And that since he took steps to ask for leave to amend Notice and Grounds of Appeal in the motion filed on 17th day of January 2007 although not moved, he urged the court to grant the amendment referred to.
Finally he also urged that the case be heard on its merit by transferring same to the general cause list.
The law is that grounds of appeal are to be framed from the findings or holdings in the record of proceedings in the trial court.
Arising from this is that Issues for determination, in any appeal must have a direct bearing on the grounds of appeal. The issues for determination are to project clearly the substance of the complaints contained in the grounds of appeal requiring resolution. And where an issue is not supported or derived from a ground of appeal it will be incompetent.
In the instant appeal, the first ground of appeal was a complaint that the trial court erred in law when contrary to the claim of N23,197,916.65 it awarded N10,000,000.00 which was the defendants liability according to the deed of guarantee between the parties.
The liability of the appellant who was the defendant at the lower court is an issue properly before that court. The affidavit in support of claim placed under the undefended list and the affidavit in support of the notice of intention to defend under Order 9 rules 2 & 3 of the High Court of Anambra State Civil Procedure rules 1988 are before the court. (See Pages 1 to 62 of the record of proceedings).
The judgment of the lower court is being challenged based on error of law. In Ichie Jerome Anoghalu Vs. Nathan Oraelosu (supra) Error of law has been stated to be failure of the court to apply the correct principles of law to establish undisputed facts or that the court has come to a conclusion on admitted or proved facts which no reasonable tribunal would have come to.
In the notice of intention to defend the suit together with the affidavit in support placed before the lower court, there is dispute on the amount claimed. And a careful examination of the first ground of appeal together with its particulars showed that the issue -Whether the appellant established a triable issue to be let in to defend the suit was derived from the said ground of appeal.
Consequently, the preliminary objection fails and it is hereby dismissed.
As stated earlier in this Judgment the appellant formulated two issues for determination while the respondent formulated only one issue.
The issue set out earlier in this Judgment on behalf of the Appellant is considered relevant and apt to determine this appeal.
Issues 1 & 2 taken together.
Learned counsel for the Appellant referred to Order 24 rule 9(2) of the High Court Rules of Anambra State 1988. He went further that in compliance with the rules he filed notice of intention to defend together with affidavit setting up a triable issue. He relied on the case of:- Adebisi Macgregor Associates limited Vs. Nigerian Merchant Bank Ltd (1996) Volumes 2 & 3 parts 38 & 39 KLR Page 220 at 230.
Learned counsel finally urged that this suit should be transferred to the general cause list for hearing.
The respondent’s counsel on the other hand contended that the appellant did not make out a triable issue in the court below in the Defendant’s Notice of intention to defend along with the supporting affidavit did not condescend upon particulars and did not as far as possible deal specifically with the plaintiff’s claim and affidavit. He relied on:- Cortia Importaco S.A. v. Sanusi Brothers Nigeria Ltd. (2000) 6 KLR part 107 page 2395 at 2408.
Reference was also made to particular 3 of the Appellants ground 1 of the Notice and grounds of appeal. The learned counsel for the appellant concerned that the said particular No.3 is bad and he urged the court to amend it for him at this point.
It should be noted that it is not the duty of the court to fill in the gap for a counsel who has been careless in the presentation of his client’s case.
Order 24 Rules 9 of the High Court of Anambra State Civil Procedure Rules 1988 provided that:-
“If the party served with the writ of summons an affidavit delivers to the Registrar, not less than five days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit setting out the ground of his defence, and the court is satisfied that there is a triable issue, then and in such a case the suit shall be entered in the general cause list and pleadings shall be filed.”
What the rule stated above is emphasizing is that a case is not transferred from the undefended list to the general cause list as a matter of course or routine but on proper scrutiny of the averments in the affidavit in support of the notice of intention to defend to confirm that the defence raised is real defence on the merits, and not a flimsy, fanciful, frivolous or a caricature defence raised to prolong the case or play for time.
See – Diamond Bank Nigeria Limited Vs. GSM Agro Allied Ind. Ltd. (1999) 8 NWLR Part 616 Page 558.
– Calvenply Limited Vs. Pekab International Limited (201) 9 NWLR Part 717 Page 164; United Bank for Africa Plc. & 1 other Vs. Alhaji Babangida Jargaba (2007) 11 NWLR Part 1045 Page 247.
The pertinent question at this juncture would be whether the notice of intention to defend and the affidavit attached by the appellant established a triable issue.
In determining whether a defendant has a good defence to the action brought against him or he has disclosed such facts as may be deemed sufficient to defend the action, it is not necessary for the trial Judge to consider at that stage whether the defence has been proved.
What is required is simply to look at the facts deposed to in the affidavit attached to the notice of intention to defend and see if they can “Prima facie” afford a defence to the action.
The defendant’s affidavit must condescend upon particulars and should as far as possible, deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts and documents are relied on to support it. The affidavit in support of the notice of intention to defend must of necessity disclose facts which will, at least, throw some doubt on the Plaintiff’s case. See – Olubusola Stores Vs. Standard Trust Bank Nigeria Ltd (1975) 4 S.C. Page 51; Sanusi Brothers (N!9.) Ltd. Vs. Cotia Commercia Ex. S.A (2000)11 NWLR Part 679 at 566; United Bank for Africa Plc. & 1 other Vs. Alhaji Babangida Jargaba (supra).
In the instant case, according to the notice of intention to defend with the affidavit annexed, the Respondent gave overdraft facility of (N10,000,000.00) Ten Million Naira to Excellent manufacturers Limited – a company in which the appellant is the Managing Director.
He guaranteed the said overdraft facility. The appellant also admitted that his obligation under the guarantee was limited to (N10,000,000.00) Ten Million Naira. He denied owing (N23,197,916.65) Twenty-three Million, one hundred and ninety-seven thousand, nine hundred and sixteen Naira sixty-five kobo being the amount claimed by the respondent. He stated further that the company’s property worth more than (N18,000,000.00) Eighteen Million Naira mortgaged to the Respondent was taken over, and that, the value is beyond the defendant’s indebtedness.
It was also stated that Exhibit “9” and “EM 10” which were alleged by the Plaintiff/Respondent to be Certified Statement of Account of the Defendant/Appellant were not served on the Managing Director of Excellent Manufacturers Limited nor any of the representatives of the Defendant/Appellant. Furthermore that the information contained in the Statement of Account are not correct.
The appellant concluded that the Excellent Manufacturers Limited was no longer owing the Respondent any sum.
A careful examination of the case put forward by the parties showed that the alleged property of the Excellent Manufactures Limited worth more than (N18,000,000.00) Eighteen Million Naira taken over by the Respondent calls for explanation on the part of the Respondent in order to determine whether in actual fact the respondent has collected more than the defendant’s indebtedness before the defence of the appellant that he is not owing the Respondent can be rejected.
Before concluding on this issue, it is necessary to consider issue NO.2. The learned counsel for the appellant contended that suit No.-0/455/2005 is an abuse of the suit the Plaintiff/Respondent filed in the Federal High Court. He submitted that the claims of the Plaintiff/Respondent in both the Federal High Court and in the High Court relate to the Defendant/Appellant’s alleged indebtedness to the Plaintiff/Respondent. Reference was also made to the claim of the Plaintiff/Respondent before the Federal High Court in Suit No.-FHC/L/CS/769/2004. He also referred to the case of – Ule Idoko Vs. Ogbeikwu (2003) 7 NWLR Part 819 at Page 289.
On the other hand counsel for the Respondent referred to Suit NO.-FHC/L/CS/769/2004 exhibited as Exhibit “EE” contained on pages 71, 72, and 73 of the record and submitted that the suit has no nexus or relationship with the present suit against which the appeal is lodged. He went further that the parties are not the same and the cause of action are different, and therefore that the suit 0/455/2005 does not constitute any abuse of court process in relation to suit No.FHC/L/CS/769/2004. He relied on the following cases:-
– Saraki Vs. Kotoye (1992) 9 NWLR Part 264 Page 156 at 188; Camac International Nigeria limited Vs. Cavendish Petroleum Nigeria limited 2006 FWLR Page 2979.
The question of what actually constitutes and what does not constitute an abuse of the process of court have been considered and answered by the Supreme Court in so many cases. One of such cases is Saraki Vs. Kotoye (1992) 9 NWLR Part 264 Page 156 where Karibi-Whyte J.S.C. reviewed several earlier decisions and stated thus:-
“The concept of abuse of judicial process is unprecise. It involves circumstances and situations of infinite varieties and conditions.
Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognised that the abuse of process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally “as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and interference with the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See – Okorodudu Vs. Okorodudu (1977) 3 S.C. Page 21; Oyegbola Vs Esso West Africa Inc (1966) 1 All NLR Page 179. Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of right, rather than the exercise of the right per se.
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 court, even though on different grounds. See – Harriman Vs. Harriman 1989 5 NWLR Part 119 Page 6…….
…….
In the instant appeal, it is necessary to set out parties in Exhibit “EE” i.e. the Suit No. FHC/L/CS/769/2004 in the Federal High Court on page 71 of the record of appeal. It is as follows:-
“IN THE FEDERAL HIGH COURT OF NIGERIA
HOLDEN AT LAGOS
SUIT NO.-FHC/L/CS/769/2004
BETWEEN:-
(1) TAMUNO NATHAN GEORGE
(Receiver/Manager)
(2) EXCELLENT MANUFACTUERS LIMITED (PLAINTIFFS)
(In Receivership)
(3) INTERNATIONAL TRUST BANK PLC
AND
(1) LOUIS OKOYE
(2) GODFREY OKOYE
(3) CLEMENT NWACHUKWU
(4) NJIDEKA OKOYE (DEFENDANTS)
(5) VIRGINIA OKOYE
(Directors Excellent
Manufacturers limited……
………)
TO:-
(1) LOUIS OKOYE
(2) GODFREY OKOYE
(3) CLEMENT NWACHUKWU
(4) NJIDEKA OKOYE of No.19 Nwokedi Street,
(5) VIRGINIA OKOYE Onitsha
ORIGINATING SUMMONS
……..
……..
A careful examination of the parties in the Suit at the Federal High Court set out above and the parties in suit NO.-0/455/2005 which is now on appeal to this Court showed that the Plaintiff in Suit No.-0/455/2005 is the 3rd Plaintiff in Suit NO.FHC/L/CS/769/2004. Also the Defendant in 0/455/2005 is the 1st defendant in Suit No.FHC/L/CS/679/2004.
What the Plaintiff/Respondent in the appeal under consideration did was that two other Plaintiffs along with itself sued the Defendant/Appellant along with other four other people in a separate suit at the Federal High Court.
The funniest part of this exercise was that the suits in both courts even though framed differently with different reliefs bordered on the Indebtedness of the Defendant/Appellant and Excellent Manufacturers Limited. For example in Exhibit “EM6” on page 19 of the record of appeal, the plaintiff wrote in paragraph 3 of its letter dated July 3rd 2002 to the defendant thus –
“Consequent upon the above your N10,000,000 overdraft facility is hereby recalled. Take notice that the balance as at June 30, 2002 stands at N11,202,648.94. You are to pay down (sic) on this facility within the next 30 days, and failure to do so will cause the bank to close on the collateral without recourse to you.”
Receiver was appointed sequel to the above. See Exhibit “DD” on page 55 of the record of appeal.
In my own view instituting different actions between the same parties simultaneously in different courts, even though on different grounds is an abuse of court process. What the Plaintiff/Respondent did was that it improperly used the issue of the judicial process to the irritation and annoyance of the Defendant/Appellant. And where a party duplicates a court process, the more current one, which results in the duplication, is regarded as an abuse of the court process. See – African Reinsurance Corporation Vs. JDP Construction limited (2003) 2 S.C.N.J Page 28 at 30.
Consequently, Suit NO.-0/455/2005 International Trust Bank Plc Vs. Louis Okoye, instituted on 26th August 2005 was an abuse of Suit NO.-FHC/L/CS/769/2004: Tamuno Nathan George & 2 others Vs. Louis Okoye & 4 others, instituted on 24th August 2004 and pending at the Federal High Court, Lagos.
In view of the foregoing, even though the appellant has established a triable issue to be let in to defend the suit and this would have entitled him to have the suit transferred to the general cause list for the court to go into merit of his defence but in view of the fact that the entire suit is an abuse of court process i.e. Suit NO.-0/455/2005, therefore the proceedings and Judgment of the lower court delivered on the 3’d day of March 2006 ought to be set aside and they are hereby set aside.
In the result, the Respondent’s claim at the court below, which led to this appeal, is hereby struck out.
This appeal therefore succeeds and it is allowed.
The appellant is entitled to costs which is assessed at (N30,000.00) Thirty thousand Naira against the Respondent.
Other Citations: (2007)LCN/2532(CA)
