African Continental Bank Plc v. Damian Ikechukwu Nwaigwe & Ors

This is an appeal against the judgment of the Court of Appeal Holden at Jos in appeal No.CA/J/13/98 delivered on the 12th day of July, 1999 in which the court dismissed the appeal of the appellant and affirmed the judgment of the High court of Adamawa State, sitting in its appellate jurisdiction, in suit No. ADSY/28A/98 delivered on the 4th day of December, 1996.

The facts of the case include the following:-

Sometime in 1993, a company known as Road construction company of Nigerian Limited, based in Numan went into liquidation as a result of which its equipments were put up for sale.

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The 1st respondent, a customer of the appellant at its Yola Branch, obtained a loan of N1.5millon (N1,500,000,00) from the appellant for the purchase of the equipments of the liquidated company out of which the sum of N1 millon (N1,000,000.00) was paid over to the said company while the balance of five hundred thousand naira (N500,000.00) was allegedly shared by officers in the employ of the appellant at the material time, The 1st respondent sold some of the equipments and made a refund of about N900,000.00 (nine hundred thousand naira) of the principal sum of N1.5millon (N1,500,000,00) but later started to divert the proceeds of the sale into an account with Afribank as a result of which the 2nd and 3rd respondents contacted the police who sealed up the business premises of the 1st respondent and carted away some of the goods of the 1st respondent was also arrested and detained.

Upon being released from detention he instituted an action against the appellant and two of its staff (officers) and joined the Commissioner of Police in charge of Adamawa State at the Upper Area Court NO. 2, Yola in suit No. UAC2Y/CV/F1/47/94 claiming some reliefs. However, on the 22nd July, 1994 the name of the appellant was struck out of the suit upon application by the other defendants.

On the 13th day of December, 1994, the 1st respondent took out another writ of summons against the earlier parties including the appellant which action was later consolidated and proceed to trial. The 1st respondent closed his case on 25th April, 1996 and the matter was adjourned for defence which never took place as the trial court closed the case for the defence on the date fixed for same due to the absence of counsel and party and heard address from counsel for the 1st respondent on 4th June, 1996.

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The matter was then adjourned to 27th June, 1996 for judgment, though appellant maintained that it was never put on notice of the proceedings from the time the trial court refused to grant an adjournment to enable appellant open its defence. A motion was later filed for leave to defend the action which was allegedly heard in chambers and refused, and the judgment was delivered on 17th July, 1996.

Following the delivery of the said judgment appellant and other defendants filed a motion before the court praying for an order setting aside the judgment which they contended was given without jurisdiction which application was refused, as a result of which appellant appealed to the High Court of Adamawa State against the judgment of the Upper Area Court while the 1st respondent cross appealed, while the appeal was pending, appellant applied for leave to apply for an order of certiorari to issue to bring before the High Court the decision of the said Upper Area Court for the purpose of being quashed, which leave was granted but the substantive application was refused by the court. After failing on its bid to quash the decision by way of certiorari, appellant then filed an application before the High Court praying for an order that it be granted leave to file additional grounds of appeal which resulted in the 1st respondent filing a preliminary objection contending that the appeal was in abuse of process in view of the application for an order of certiorari to quash the same decision, which objection was taken and upheld by the court and the appeal dismissed. Appellant was dissatisfied with that verdict and appealed to the Court of Appeal, holden at Jos, which dismissed same resulting in the instant further appeal, the issues for the determination of which have been identified by learned senior counsel on the appellant, G. OFODILE OKAFOR ESQ, SAN, in the appellant brief of argument filed on the 28th day of November, 2005 as follows:-

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“1. Whether or not the appellant’s appeal to the High Court of Adamawa State sitting in its appellate jurisdiction amounts to an abuse of court process.

2. Whether or not the prerogative writ/order of certiorari is an alternative to constitutional right of appeal.

3. Whether or not the court below considered all the issues raised especially the issue of estoppel and whether the court was right in affirming the judgment of the High Court sitting on appeal”.

In arguing issue 1, learned senior counsel for the appellant submitted that appellant’s appeal before the High Court was not an abuse of process; that an abuse of process of court is when a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice, e.g. where two similar processes are issued against the same party(ies) in respect of the exercise of the same right and same subject matter – relying on Arubo V. Aiyeleru (1993) 3 NWLR (Pt.280) 126 at 142: CBN v. Ahmed (2000) 11 NWLR (Pt.724) 369 at 504; Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188 – 189; Diel v. Iwuno (1996) 4 NWLR (Pt.445) 622 at 630: N.V. Scheep v. “S”. Araz (2006) 15 NWLR (Pt.691) 622 at 664: that appellant has not done anything that can be considered an abuse of the process of the court; that the parties in the appeal and the application for certiorari are not the same neither are the proceedings similar in nature; that the processes were not taken out simultaneously; that as at the time the appeal was being pursued, the proceeding on certiorari had been concluded; that even if the application for certiorari was still pending, it can exist side by side with the appeal relying on order 43 Rule 3(6) of the Gongola State High Court (Civil Procedure) Rules; page 376 of Judicial Review of Administrative Action by S.A. De-smith, 3rd edition.

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It is the further submission of learned senior counsel that the appellant was exercising its constitutional right of appeal by filing the said appeal and as such it cannot be said to be abusing the process of the court by exercising that right, relying on Saraki v. Kotoye (supra) at 189, and 194: CBN v. Ahmed supra at 409-410. Learned senior counsel urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the 1st respondent, CHARLES OBISHAI ESQ, submitted that what the appellant did by pursuing the two processes amounts to an abuse of court process; that Order 43 Rule 3(6) supra applies when a party is seeking leave to apply for an order of certiorari, not after obtaining the leave; that the only option opened to the appellant upon the dismissal of its application for certiorari was to appeal against the decision, not to resort to an alternative remedy, Finally learned counsel urged the court to resolve the issue against the appellant.

Abuse of court processes has been variously defined by this court over the years and includes a situation where a party improperly uses judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice, Where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and same subject matter or where the process of the court has not been used bona fide and properly – see Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at 188: Okorodudu v. Okoromadu (1977) 3 S.C 21: Okafor v. A-G Anambra State (1991) 6 NWLR (Pt.200) 63 at 681: Nnana v. Nwanebe (1991) 2 NELR (Pt. 172) 181; C.O.P. v. Fasehan (1997) 9 NWLR (Pt.507) 171: Olutinrin v. Agaka (1998) 6NWLR (Pt.554) 366.

In the case of Adesokan v. Adegorolu (1991) 3 NWLR (Pt.293) 297, it was held that to institute an action during the pendency of another one claiming the same reliefs amount to an abuse of process of court.

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It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of the court – see the authorities earlier cited. It is not the existence or pendency of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of court – see Okafor v. A-G Anambra State supra.

There is no dispute that following the judgment of the Upper Area Court, appellant filed a motion before that court seeking to set aside that judgment on the ground that it was a default judgment which was refused by the court. Equally not disputed is the fact that appellant proceeded to file an appeal against the said judgment and that while that appeal was pending before the Adamawa State High Court, appellant filed an application seeking leave to apply for an order of certiorari to bring up to the High Court for the purpose of its being quashed the very decision of the said Upper Area Court, subject of the pending appeal; that the application for leave was granted but the subsequent application on notice for the order of certiorari was dismissed by that court resulting in the appellant turning round to pursue the appeal which was still pending, by filing an application for leave to file additional grounds of appeal. It was at the hearing of the said application that learned counsel for the 1st respondent raised an objection to the hearing of the appeal. The High Court held at page 13 of the record, inter alia, as follows:-

“Having failed [in the application for an order of certiorari], the best the appellants could have done was to appeal against the order of dismissal of their application at the court of Appeal Jos, than to now come by way of appeal.

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We feel this is a proper example of an abuse of due process of the law”

The above decision resulted in an appeal to the Court of Appeal which affirmed the decision of the High Court supra in the following terms:-

“In the first place, commencing the certiorari proceedings while an appeal was pending to nullify the same decision of the same court between the same parties, to my humble mind, is an abuse of court process. Secondly to seek to set aside the same judgment of the same court between the same parties on the same subject-matter is frowned at by the law as being an abuse of its process”.

The question is whether the lower courts are right in their holdings?

It is the argument of learned senior counsel for the appellant that the parties to the two actions and the issues calling for determination therein are different which cannot be correct in substance. The judgment appellant sought to set aside by appeal or to quash by certiorari is between the same parties and to me it does not matter whether the grounds for seeking to quash the judgment are fewer that the grounds of appeal seeking to set aside the said judgment. The effect is clearly the same that is, nullifying the said judgment. It is clear that appellant maintained parallel actions or proceedings aimed at achieving the same end of nullifying the judgment in question simultaneously thus committing a clear case of abuse of court process. As had been held by this court in the case of Adesokan v. Adegorolu supra, it does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action could constitute an abuse of process of the court.

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Incidentally in the instant case, the process that was filed subsequent to the appeal and decided by the court was the certiorari proceedings; that was the proceedings in abuse of court process. However, the said process was not struck out as it should have but was allowed to run its full course in the High Court of Adamawa State. The decision arrived at in the said proceeding remains valid until set aside by a court of competent jurisdiction. As at now, there is no appeal against the decision dismissing the application for certiorari. So, legally and strictly speaking, the process in abuse is the application for certiorari not the appeal but as the latter has been determined to allow the appellant to have a second bite at the cherry or apple would be unfair as both of the processes cannot be allowed to exist side by side. Since the application for certiorari has been concluded, to continue with the appeal will sure be an abuse of process of the court and ought not to be allowed or encouraged.

Learned senior counsel for the appellant has referred the court to Order 43 Rule 3(6) of the High Court of (Civil Procedure) Rules of Adamawa State which provides thus:-

“Where leave is sought to apply for an order of certiorari to remove for the purpose of its being quashed any judgment, order conviction or other proceedings which is subject to appeal and as time is limited for the bringing of the appeal, the court may adjourn the application for leave until the appeal is determined or the time for appealing has expired”.

The above provision of the Rule is very much in accord with the decision in Re Umuolu Village Group Court, Ex Parte Macaulay, 20 NLR III at 113 where it was held that where there is a right of appeal from the decision of the court that made the order, a party who is dissatisfied with the order may nevertheless apply for a writ of certiorari instead of appealing but he cannot do so until the statutory time for appealing has lapsed.

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The above decision clearly shows that an appeal is an alternative remedy for an order of certiorari; the same is supported by Order 43 Rule 3 (6) supra. The above clearly show that you cannot have both at the same time or one after the other. You must choose between the two.

On issue 2, learned senior counsel for the appellant submitted that the procedure or system of judicial review is radically different from that of appeal because in appeal, the court is concerned with the merit of the decision on appeal, while the court is concerned with the legality of the administrative act or order of an inferior court or tribunal when embarking on judicial review; that right of appeal is statututory/constitutional while judicial review is embedded in the common law; that the right of appeal conferred by Section 241 of the 1999 Constitution cannot be taken away by the common law principle of the doctrine of election of remedies, relying on Muhammed v. Husseini (1998,) 14 NWLR (Pt 584) 108 at 140.

On his part, learned counsel for the respondents submitted that where an alternative remedy is available, certiorari will not be granted, relying on District Officers v. The Queen (1961) 1 SCNLR 83 at 88-89; -Judicial Review of Administrative Action by S. A De Smith, 3rd edition page 326.

He urged the court to resolve the issue against the appellant.

In the case of Oredoyin v. Arowolo (1989) 4 NWLR 172 at 211 an appeal is defined as an initiation to a higher court to review the decision of a lower court to find out whether on the proper consideration of the facts placed before it, and the applicable law, that court arrived at a correct decision.

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On the other hand, judicial review is the supervisory jurisdiction of the High Court exercised in the review of the proceedings, decisions and acts of inferior courts and tribunals and acts of governmental bodies. The remedies available are for orders of mandamus, certiorari and prohibition and also the writ of Habeas corpus. In judicial review, the court is usually concerned with the legality and not with the merit of the proceedings, decisions or acts of the affected inferior court, tribunal or governmental body.

The jurisdiction of the High Court to quash the judgment, order or proceeding of an inferior tribunal on the face of the record is not an appellate jurisdiction – see R. V. Northymberland Compensation Appeal tribunal, Ex Parte Shaw (1952) 1 KB 338: R. V. Padington North and St. Marylebone Rent Tribunal Ex Parte Perry (1959) 1 QB 229.

The appellate jurisdiction of the High Court and its jurisdiction to award certiorari are two distinct and separate jurisdictions; therefore the absence or existence of a right of appeal or limitation of that right where it exists is irrelevant to the right of the High Court to issue certiorari – see R. v. Umuolu Village Group Court, Ex Parte Macaulay, supra. A party aggrieved by a tribunal’s decision may apply for and be granted an order of certiorari even though an alternative remedy may be available to him – see R v. District Officer, Ex Parte Atem (1961) ALL NLR 51, However, the question is whether the party so aggrieved can employ both remedies simultaneously for the purpose of seeking redress of the unacceptable decision.

I had earlier stated that certiorari is an alternative remedy to any appeal and consequently both remedies cannot be resorted to by an aggrieved party simultaneously as was done in the instant case. To do so is a clear case of abuse of process of the court.

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When something is said to be an alternative to another, it means you cannot have both of them at the same time or at all.

The argument that appellant’s constitutional right of appeal cannot be taken away by the common law right of judicial review is misconceived as no one has denied the appellant the exercise of its right of appeal in the instant case. It actually filed an appeal against the decision in question but while that appeal was pending, he filed an application for certiorari against the said judgment/decision. It was after losing the application for certiorari that it returned to the court to pursue the appeal. It should be kept in mind that no one has also denied appellant its right to appeal against the decision of the High Court dismissing its application for certiorari, which appellant has the right to do. No one has therefore denied appellant its constitutional right of appeal. It is rather the appellant who has made its choice of remedy and should have no one else to blame.

The third issue is really not relevant in view of the resolution of the two issues earlier considered. The objection was simply that the High Court haven dismissed the application for certiorari the appeal of the appellant seeking to achieve the same thing as the certiorari had become an abuse of process of the court. That objection was sustained and I see nothing indicating a denial of appellant’s right of fair hearing or of appeal which appellant has with regards to the decision dismissing the application for an order of certiorari. In any event, the lower court adequately dealt with the issue at pages 157 – 158 of the records where it held thus;-

“This argument does not seem to impress me because whatever method was used, the purport of it all was to set aside or quash the judgment of the upper Area Court. Either the appeal or the certiorari proceedings would achieve the same end.

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Consequently in my humble view certiorari is an alternative to appeal. I think the lower court put the position succinctly when it said at page 133 of the record as follows:-

Exhibit ‘D’ attached to the counter affidavit which is a ruling of this court in the application for certiorari is a judgment of this court whose appeal can only lie to the Court of Appeal. This court sitting in its appellate jurisdiction is now not competent to hear the matter having earlier stated that the appellants having failed in their bid for judicial review to quash the decision of the upper Area court, Yola, cannot now come by way of appeal before us. They are therefore stopped from pursuing this appeal”.

The appellants in their brief had also submitted that they could not have been said to have waived or lost their right merely because, before the hearing of the appeal, they had applied for certiorari to quash the judgment. But it is clear that from the decisions cited above, it is not in dispute that certiorari proceedings and as appeal achieve the case result. This is the important thing. The two invite the superior court to examine the proceedings of an inferior court with a view to setting if aside in favour of the aggrieved party. What the High court did was to decline to allow the appellants to use the appeal process after the certiorari application had failed.”

In conclusion, I find no merit in the appeal which is consequently dismissed with costs assessed at N50, 000.00 to the 1st respondent.

Appeal dismissed.

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