National Inland Waterways Authority V. Standard Trust Bank Plc (2007)
LawGlobal-Hub Lead Judgment Report
CHIDI NWAOMA UWA, J.C.A.
This is an appeal against the Ruling of the Federal High Court Abuja Division delivered on the 21st day of July, 2005.
The Appellant sued the Respondent in the lower Court for the sum of N557,305,217.70 (Five Hundred and Fifty Seven Million, Three Hundred and Five Thousand, Two Hundred and Seventeen Naira, Seventy Kobo) being the amount due and outstanding to the Appellant by virtue of the bank guarantee issued by the Respondent in favour of the Appellant and interest thereon as per the writ of summons and Statement of claim at page5 3-8 of the printed records.
The appellant by a motion ex parte supported by a 17 paragraph affidavit wherein it was deposed that the respondent had no defence to the action. The lower Court thereafter subsequently placed the suit on the undefended list and the writ of Summons was so marked. When the matter carne up for argument on 15/6/05 a Notice of Intention to Defend and an affidavit had been filed in opposition to the application for judgment by the Respondent: under the undefended list, the case was adjourned to 27/6/05 when the Respondent moved its Notice of Preliminary Objection to the action, Counsel lo the Appellant replied to the Notice of Preliminary Objection and moved the Court to enter judgment in favour of the Appellant in the sum claimed alleging that no defence to the action had been disclosed through the objection and/or through the affidavit.
The Preliminary Objection was taken together with the hearing of the Notice of Intention to Defend under the undefended list Procedure. In the Ruling of the trial judge of 21st day of July, 2005, the Court held that the case be transferred to another Court in the Federal High Court, precisely Court 3.
Being dissatisfied with the ruling, the appellant filed its Notice and Grounds of Appeal. Briefs of argument were subsequently filed and exchanged. In his brief of argument, the learned Counsel for the appellant Etigwe Uwa Esq. formulated the following issues for determination.
“1. Whether upon all the valid materials placed before the court the preliminary objection of the Respondent ought not to have been dismissed summarily.
- Whether judgment should not have been entered in favour of the Appellant via the undefended list procedure in view of the evidence adduced by the Appellant in support of the application for entry of judgment and that adduced by the respondent in opposition.”
The learned Counsel for the Respondent, P.I.N Ikwueto, (SAN) adopted the two (2) issues for determination formulated by the Appellant.
In his submission in respect of issue one, the learned Counsel for the appellant Submitted that the basis for the preliminary objection is that the suit constitutes an abuse of Court process, which learned Counsel said must be established by credible admissible evidence. That the preliminary objection had no supporting affidavit Except processes filed in suit No; FHC/ABJ/CS/511/2004 which were annexed to the Notice of preliminary Objection which learned Counsel argued were not Certified True Copies, he argued that a copy of the process filed was only attached to the Notice of objection without an affidavit which learned Counsel argued is not enough and cited and relied on the cases of Bello v. N.B.N Ltd (1992) 6 NWLR (Pt 246) Page 206 Far East Mercanthe Co. Ltd vs. Boothia Maritime Inc. (1998) 5 NWLR (pt.551) page 620, Enterprises Nig. Ltd vs. Global Transport Oceanico S.A. & Anor (1998) 1 NWLR (Pt.532) Page 1.
In reference to S. 97 (e) of the Evidence Act learned Counsel argued that the only admissible secondary evidence of a public document is a Certified True Copy of Same and relied on the case of Queen vs. Minster of Lands Western Nigeria Ex parte Azikiwe (1969) 1 All NLR 49 amongst other cases. He argued that the preliminary objection of the respondent was not supported by any admissible evidence and that the objection therefore ought to have been dismissed.
In the alternative the learned appellants Counsel argued that assuming that the annexures were admissible, the suit filed before the lower Court would still not have constituted all abuse of Court process. He submitted that the suit essentially concerned the payment of the sum of N557,305,217.00 being the amount due to the Appellant from the Respondent on the basis of a first demand bank guarantee. Under and by virtue of the terms of the guarantee, the Respondent undertook the following:
“Unconditionally and irrevocably to guarantee as Primary obligor and not merely as surety, the payment to the Petroleum (Special) Trust Fund on its first demand without whatsoever right of objection or inquiry on our part and without its first demand to the contractor in the amount not exceeding the said of N557,305,217.00 and in respect of which sum we bind ourselves, our successors and assigned by these presents.”
By the above terms learned appellant’s Counsel argued that the guarantee was expressed to be on “first demand” without a right of objection or inquiry on the Respondent’s part and without the Appellant having to make a first claim to the contractor. He argued further that the liability of the Respondent under the guarantee was primarily and totally independent of any dispute regarding the underlying contract between the beneficiary (Appellant) and the contractor (Giorgio Dredging Ltd) and that both contracts were separate and autonomous. Learned appellant’s Counsel cited and relied all several monographs and judicial authorities in support of his argument amongst which are:
Comparative Law of Security and Guarantees Chapter 26 at Page 339, Law of Guatantee 4th Edition by Geradine Mary Andrew, QC and Richard Millet, QC Chapter 16 paragraph 16-001, also Pagets Law of Banking 12th Edition by Mark Hagood QC Chapter 34 Page 730. He contended that the learned trial judge was in error in holding that:
“The right of Plaintiff (NIWA) to sue is contingent upon the determination of suit No. FHC/ABJ/CS/511/04.”
He argued further that both causes of action are separate, independent and autonomous and referred to the case of African Insurance Development Corporation vs. Nigeria Liquefied Natural Gas Limited (2004) NWLR (Pt.653) Page 494.
Learned appellants Counsel argued that the claim at the lower Court by the beneficiary viz the Appellant against the Respondent, the issuer of the bond was not affected and not contingent upon suit No: FHC/ABJ/CS/511/04which learned Counsel said is a suit relating to a dispute between beneficiary and the contractor in respect of the underlying contract.
He agued that the suit in the lower Court did not constitute an abuse of process as the suit is independent and autonomous from the suit between the beneficiary and the contractor. Learned Counsel urged this Court to resolve the first issue in favour of the appellant.
In arguing his issue two, the learned Appellants Counsel submitted that leave to place the suit on the undefended list was granted by the learned trial judge on the 20/5/05. Subsequently a Notice of Preliminary Objection dated 14/6/05 was also filed praying for an order “striking out the suit as an abuse of process.” On the 15th day of June 2005 a Notice of Intention to Defend together with an affidavit in support of the Notice of Intention to Defend was filed. He argued that the ground upon which the Notice of Preliminary Objection was anchored are the same grounds upon which the Respondents sought leave to defend.
Further that the preliminary objection and the affidavit in support of the Notice of Intention to Defend disclose that the facts relied upon in support of both Notices are exactly the same. That the Notice of preliminary objection was premised on an alleged abuse of Court process not on an abuse of jurisdiction i.e. subject matter jurisdiction, locus standi or res judicata, and referred to the case of Abdulkadir v. (2002) 8 NWLR (Pt.769) Pg.396, and Senate President v. Nzeribe (2004) 9 NWLR (pt.878) Pg.251.
The learned appellant’s Counsel submitted that he urged the Court to enter judgment in favour of the appellant in his reply to the preliminary objection which also touched on the Notice of Intention to Defend while the Respondent argued that to enter judgment in favour of the Appellant in view of the pendency of suit No: FHC/ABJ/CS/511/2004 would amount to an abuse of process, secondly that the contractor’s (Giorgio Dredging Limited) work was hampered.
The learned appellant’s Counsel went into detailed description or definition of the type of bond between the parties, the terms of the guarantee and conditions and the liability or otherwise of the contractor.
Finally that as between the appellant and the contractor, that there are issues to be resolved which include the claim by the contractor that the contract was frustrated by the non-procurement of the Environmental Impact Assessment Report and the fact that there are certain expenses which have been incurred by the contractor on behalf of the PTF, now appellant upon its instructions. Learned appellant’s Counsel urged this Court to allow the appeal and enter judgment in its favour in terms of the writ of summons and statement of claim.
In response to issue one, the learned senior counsel for the Respondent submitted that a Court will take judicial Notice of its own proceedings, records and contents of such proceedings and referred to S.74 (1) of the Evidence Act and cited and relied on the cases of Craven vs. Smith 1869 LR 4 Exch. 146, Osafile and Anor v. Odi and Anor (1990) 3 NWLR (pt.137) Pg.130, and SI Enterprises Limited v. The Kogi State Government and 2 Ors (2005) 1 NWLR. The learned Senior Counsel argued that before this matter was instituted, there was pending before the same Federal High Court, Abuja Division, Suit No; FHC/ABJ/CXS/511/2004, Giorgio Dredging and Company Limited and Anor v. Attorney General of the Federation and 4 Ors. The Senior Counsel argued that the learned trial court was enjoined top take judicial notice of the proceedings. Further that by S.73 of the Evidence Act, no fact of which the court must take judicial notice of need be proved. Also that the learned appellants counsel’s argument that because the processes attached to the notice of preliminary objection filed by the Respondent were not certified, therefore not supported by any admissible evidence is unsupported and should fail.
The learned Senior counsel argued that the proceedings which the learned trial court should take judicial Notice of need no proof. He argued that the aim of the present suit was to gain an advantage by the Appellant to the detriment of the Respondent, and that there was in the earlier suit a pending Motion on Notice to join the Respondent herein as co-plaintiff.
Learned Senior Counsel argued that the institution of a fresh action between the same subject matter when the previous suit has not yet been disposed of constitutes an abuse of process and cited several judicial authorities. See Registered Trustees of Living Christ Mission v. Dr Aduba (2002) 2 SC 1, CBN v. Ahmed (2000) 11 NWLR (Pt.724) 369, USI Enterprises Ltd v. Kogi State Govt. (2005) 1 NWLR (pt.908) 494, at 517-518, Usman v. Baba (2005) 5 NWLR (pt.917) 113 at 131-132, Okafor v. Attorney General, Anambra State (1991) 6 NWLR (pt.200) 659 at 681, and Honourable Minster for Works and Housing v. Thomas Nig. Ltd (2002) 2 NWLR (pt.752) 740 at 778-779.
The learned Senior Counsel urged this Court to hold that on the finding of the learned trial Court, the present suit, Suit No: FHC/ABJ/CS/273/05 is a gross abuse of process and urged us to dismiss same. He argued that the appellant’s claims ill this case are contingent on the determination of the claims in Suit No.FHC/ABJ/CS/511/04.
In arguing issue two, the learned Senior Counsel argued that the Notice of Preliminary Objection was premised on an alleged abuse of Court process. He argued that if an action is an abuse of process, the action will be incompetent to entertain such an incompetent action, the Court would have no jurisdiction to entertain an action which is incompetent, and he referred to Madukolu VS. Nkemdilim (1962) All NLR.
Further that the learned trial Court rightly exercised its discretion and held that the action before it was as shown in the notice of preliminary objection an abuse of process, therefore that the appellants argument in his brief about entering judgment on the undefended list will be a mere academic exercise, the court having adjudged the case incompetent before it and which the Court had no authority to entertain. The learned Senior Counsel for Respondent urged this Court to dismiss the argument in respect of issue 2 in the appellant’s brief as mere academic exercise. It is trite that whether or not: a suit constitutes an abuse of Court process is a matter of fact, which must be established by credible and admissible evidence. It is on record that Suit No: FHC/ABJ/CS/511/2004 was instituted first, precisely 21/9/04 while the present suit commenced on 17/5/05. It is also acceptable that a Court will take judicial notice of its own proceedings, records and contents of such proceedings. Therefore it is clear that before the present suit was instituted the former was pending before the same Federal High Court Abuja Division, and this the learned trial Court could not overlook, The crux of the Respondent’s Notice of preliminary Objection in the lower Court was that in an effort to overreach the outcome of suit No: FHC/ABJ/CS/511/2004, the appellant filed the present suit claiming the reliefs which formed the subject matter of the earlier pending suit No:FHC/ABJ/CS/511/2001. At the hearing of the Preliminary Objection, the Court below was entitled to utilize the documents in its file to wit the processes filed in suit No: FHC/ABJ/CS/511/2001 in order to determine whether the issue of abuse of process was well founded. The learned trial Court was entitled to take judicial Notice of the proceedings in suit No: FHC/ABJ/CS/511/2001. See Nasco Management Services Ltd v. A.N. Amaku Transport Limited (2003) 2 NWLR (pt.804) 290.
I am in agreement with the learned respondent’s Counsel’s argument as to when an abuse of Court process Occurs. An abuse of judicial process includes instituting a multiplicity of actions on the same subject matter against the same Opponent all the same issue Or instituting a multiplicity of actions on the same matter between the same parties or instituting different actions between the same parties simultaneously in different courts even though on different grounds. See Agwasim vs. Ogiche (2004) 10 NWLR (Pt.882) P.613, Jadesimi v. Okotie Eboh (1986) 1 NWLR (pt.16) P. 264 cited by the leanred Respondent’s counsel and Unifam In. Ltd v. Oceanic Bank International (Nig.) Ltd (2005) 3 NWLR P.83.
The present suit sought to overreach the subject matter of the previous suit. In the previous suit it is on record that there was a pending Motion on Notice to join the Respondent herein as Co-plaintiff. In the Governor of Anambra State and ors vs. C. O. Anah and ors, (1995) 8 NWLR (Pt.412) P. 2.213, Abuse of Court process or of a judicial process was stated by Adamu JCA thus:
‘”An abuse of Court process or of a judicial process can be said to be employing or invoking the judicial process or procedure by issuing it or missing it in bad faith for the purpose of gaining advantage or interest by a party against or to the detriment of his adversary.”
If the present Respondent is joined as co-plaintiff in the previous suit, be cannot maintain an action against the Appellant who would have proceeded to obtain judgment in its favour in terms of the claim in the present suit, which would be an unfair advantage on the part of the appellant to the detriment of the Respondent. See Registered Trustees of living Christ Mission v. Dr Aduba (2000) 2 SC 1 amongst numerous authorities cited and relied upon by the learned Respondent’s Counsel. Also see Okafor v. A.G., Anambra State (1961) 6 NWLR (Pt. 200) Procedurally it is right to hear an issue of jurisdiction along with arguments on the merits of the case, but the decision whether or not to hear parties on an objection to its jurisdiction over a matter from a hearing of the merits of the suit lies within the discretion of the Court.
In the present case, the learned trial Court rightly exercised its discretion by separately dealing with the Notice of Preliminary Objection urging the Honourable Court to strike out the suit for being an abuse of process. There is nothing to show that the exercise of the discretion by the Court occasioned any miscarriage of justice or that it was irregularly done.
Where any Court exercised its discretion judicially and judiciously an appellate Court will not interfere in the exercise of the discretion even if the appellate Court would have exercised the discretion differently. See Peoples Democratic Party v. Kwara State Independent Electoral Commission & Ors (2006) 3 NWLR (pt.968) 565. In the exercise of such powers, that are discretionary, it is that or the trial Court, and not of the appellate Court hence the latter cannot substitute its own discretion. See also Efetiroroje v. Okalefe II (1991) 5 NWLR (pt.193) 517, Royal Exchange Assurance (Nig.) Ltd v. Aswani iles Ltd (1992) 3 NWLR (pt.227) 1, Saraki v. Kotoye (1990) 4 NWLR (pt.143) P.144.
Thus, unless exercise of discretion by the trail Court leads to injustice and miscarriage of justice, the appellate Court will not normally set aside or interfere with the exercise of discretion of the trial Court once it is clear that it was exercised on just and legal reasons that is judicially and judiciously exercised. Even though judicial authorities have decided that arguments on issue of jurisdiction and the merits of the case could be taken together, all the same the issue of jurisdiction should be solved first, before going into the merits. The issue of hearing the jurisdiction separately from that as to merit is at the discretion of the Court.
I am of the opinion that the learned trial judge exercised his discretion judicially and judiciously and I have no right to tamper with such exercise, On issue two, the learned appellant’s Counsel agreed and urged this Court to enter judgment on the undefended list by invoking its powers under Order- 3 Rule 23 of the Court of Appeal Rules 2002 to enter judgment for the Appellant as claimed on the writ of Summons and statement of claim.
I have looked at the arguments proffered by the appellant as to why judgment should be entered in favour of the appellant via the undefended list procedure and examined that adduced by the respondent in opposition.
In the present case the Respondent filed Notice of- Intention to defend along with the Notice of Preliminary Objection. For a proper transfer to a general cause list it is the law that after a close examination of the grounds if the supporting affidavit discloses a defence to the action on the merit, the Court shall give an order that the suit be transferred to the ordinary or general cause list. If the trial Court finds otherwise, then the case shall be heard as an undefended suit without the calling of witnesses for the Plaintiff to prove his case. The important thing is that the defendant has a “triable issue”. The ultimate success or otherwise of such defence is immaterial. See Alhaji Kabiru vs. Alhaji S.I. brahim (2004) 2 NWLR (pt.857) p.326, Befareen Pharmacy Ltd v. African International Bank Ltd (2005) 17 NWLR (pt.954) p.230, P. Enefi v. International Transactions Ltd (2000) 11 NWLR (pt.678) P.225.
A “triable issue” is disclosed where a defendant’s affidavit in support of the Notice of Intention to defend is such that the Plaintiff will be expected to explain certain matters with regard to his claim or where the averments in the affidavit casts doubt on the plaintiff’s claim. It is the discretion of the trial Court to determine this by properly scrutinizing both the plaintiff’s claim as well as affidavit of the defendant filed in support of the Notice of intention to defend the suit. See the cases of Alh. A. Haido and Anor v. Alh. S. Usman (2004) 3 NWLR (pt.859) p.65, Alh. Kabiru v. Alh. S. Ibrahim (Supra).
The defendant’s affidavit must raise a “bona fide” issue for trial between himself and the plaintiff. See Eneji v. International Transactions Ltd (Supra).
In the present case having examined what both parties have presented before the Court with the supporting exhibits, it is clear that the parties are not agreed on the facts. The appellant says the suits are distinct and quite different and could be determined separately without any adverse effect on the Respondent while the Respondent says the suits are the same and the outcome of the first would affect the present suit. These conflicts are enough to arrive at the decision that there is a dispute between the parties that necessitates a full trial in the general cause list. This would afford both parties an opportunity to vent their respective grievances and contentions. The trial Court would then be in a better- position after hearing both parties to arbitrate before arriving at any conclusion one way or the other. It is on getting to the trial Court that the trial Court would determine whether evidence would be led to resolve conflicts if need be of both suits, or to go ahead with only the previous suit and/or striking out the present suit, this Court cannot speculate, but rather left for the trial Court.
In the final analysis both issues are resolved against the appellant in favour of the Respondent. The appeal fails and is hereby dismissed. The Ruling of the trial Court is affirmed.
CROSS APPEAL
In the cross appeal the learned senior Counsel for the respondent P. I. N. Ikwueto (SAN) raised the sole issue for determination of this Court:
Whether the learned trial Court was right in making an order for the transfer of this suit to another Court instead of an order dismissing this suit.
The learned senior counsel argued that none of the parties prayed for an order transferring this suit to any Court including Court, 3 having found that the suit is an abuse of process since a similar action was already pending.
The learned senior counsel argued that the trial Court cannot suo motu transfer the matter to another Court “in the interest of justice” and argued that the order was irregular and unjustified. Further that the Court must guard against an abuse of its process and cited and relied on Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77 at 84. Also that once a Court is without jurisdiction to entertain a matter, that is an abuse of Court process. The learned senior counsel urged this Court to invoke S. 16 of the Court of Appeal Act and make the order the trial Court refused to make, that is an order dismissing this suit for being un abuse of process. The learned trial Court held thus:
“The right of plaintiff (NIWA) to sue is contingent upon the determination of suit No: FHC/ABJ/CS/511/2004, I disagree with plaintiff Counsel E, Uwa, Esq, that cause of action in 2 Suits are different In fact they are the same.”
From the above holding I am of the opinion that it was proper For the Court to have made the order of transfer for proper determination of the two suits, whether the right of the plaintiff to sue and whether the two suits are distinct or the same would be settled.
The learned senior counsel for the respondent urged this Court to dismiss the present suit for being an abuse of process and cited several legal authorities.
On the issue of the order of court to be made where an abuse of the process of Court is alleged, there are conflicting authorities as to whether the order to make is one of dismissal or of striking out of one of the suits, if found to constitute an abuse of process. The authorities are numerous of the apex Court. Each deals with the issue of abuse of process of the Court.
In Ovenseri v. Osagiede (1998) 11 NWLR (pt.572) 1, (1998) 7 SCNJ at 195, the Supreme Court ruled that the proper order to make when a matter is not properly before the Court is to strike out the matter. See also Suleman Mohammed v. Lasisi Olawummi (1993) 5 SCNJ 126.
In a case of abuse of the process the Court, where a pending matter is improperly before the Court, recent decisions of the apex Court reason that such a matter should be dismissed. See Unifam Ind. Ltd (supra), African Reinsurance Corp. v. JDP Construction (Nig.) Ltd (2003) 13 NWLR (pt.838 at 609, Arubo v. Aiyeteru (1993) 3 NWLR (pt.280) 126, Kode v. Alh. Yusuf (2001) 4 NWLR (pt.703) 392. Every case must be looked at with its surrounding circumstances.
In the circumstances and facts of this case it would be procedurally wrong to strike out the suit or dismiss same where the parties are not agreed on the facts concerning the two pending matters. I agree with the holding of the trial Court thus:
“… In the interest of justice this suit shall not be struck Out but will be transferred to Court 3, where all issue and claims relating to contract for the dredging of the lower Niger will be determined. I so ordered. ”
With the above holding, there are still several options in the said court 3, consolidation of the two cases or striking out of one of the cases which constitutes the abuse if the cases are found to be the same, I hold that the trial court was right in transferring this suit to Court 3 where all issues pertaining to the contract in question will be determined.
The cross-Appeal fails and is hereby dismissed.
No order as to costs.
Other Citations: (2007)LCN/2500(CA)
