Instance(s) in which an Action Will not be an Abuse of Court Process on Ground of Multiplicity of Actions

CASE TITLE: UNITY BANK PLC v. CLESON INVESTMENT LTD (2022) LPELR-59045(CA)

JUDGMENT DATE: 24TH NOVEMBER, 2022

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: UGOCHUKWU ANTHONY OGAKWU, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Civil Procedure.

FACTS:

This appeal is against the judgment of the High Court of the Federal Capital Territory delivered by Hon. Justice K. N. Ogbonnaya on the 29th day of March, 2019.

The Appellant who was in a banker/customer relationship with the Respondent offered loan facilities to the Respondent. The relationship went awry and on the basis that the Respondent was in default of its obligations under the loan facility, the Appellant instituted Suit No. FCT/HC/CV/1408/2014 under the undefended list and obtained judgment against the Respondent for the amount outstanding on the loan facility inclusive of interest.

The Respondent was dissatisfied with the said decision and appealed against the same in APPEAL NO. CA/A/52/2016.

​Subsequently, the Respondent instituted fresh proceedings in Suit No. FCT/HC/CV/1856/2014 against the Appellant and two others. In the said action the Respondent claimed relief on the nullity of the aforesaid loan facility for being based on an interest/lending rate that is contrary to the Central Bank of Nigeria Guidelines and also for an order restraining the other Defendants in the said action from perfecting a deed of legal mortgage over the Respondent’s property in respect of the aforesaid loan facility.

In the course of the proceedings in the said suit, an order of injunction was made restraining the Appellant, its agents, officers or representative from selling or auctioning the Respondent’s property used in respect of the said loan facility.

After the said order of injunction and during the pendency of the appeal in APPEAL NO. CA/A/52/2016 as well as the action in FCT/HC/CV/1856/2014, the Appellant executed a Sale and Purchase Agreement between it and one Frontier Capital Alternative Assets Limited, by which it assigned the entirety of all its rights, title, interests and benefits in its transaction with the Respondent to the said Frontier Capital Alternative Assets Limited. Upon giving Notice of Assignment in this regard to the Respondent; the Respondent again instituted Suit No. FCT/HC/CV/0441/2017: CLESON INVESTMENT LIMITED vs. UNITY BANK PLC & ANOR by originating summons seeking declaratory relief and orders.

The Appellant filed its counter affidavit in opposition to the originating summons, as well as a notice of preliminary objection challenging the competence of the action on the grounds that it is an abuse of the Court process. The 2nd Defendant in the action at the trial Court, Frontier Capital Alternative Assets Limited, did not file any processes in respect of the action and also did not attend at the hearing before the Court.

The trial Court took argument on the preliminary objection and the substantive originating summons and in a ruling and judgment, it dismissed the preliminary objection and entered judgment in favour of the Respondent as claimed. Dissatisfied with the judgment, the Appellant lodged an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION:

The Appellant formulated the following issues for determination thus:

“1. Whether the action of the Appellant by the issuance of Notice of Assignment (Exhibit G) served on the Respondent amounts to abuse of Court Process.

2. Whether the action of the Respondent instituting this Suit FCT/HC/CV/0441/17 at the trial Court when it had earlier commenced a similar suit in Suit No. FCT/HC/CV/1856/2014 and filed an appeal against the judgment of a trial Court in Suit No. CV/1408/14 which facts are similar does not amount to an abuse of the Court process.

3. Whether the Order of the trial Court in Suit No. FCT/HC/CV/1856/2014 restraining the Appellant from selling the Property described as Plot No. 2039 Masaka Close off Olusegun Obasanjo Way, Wuse 1 District Abuja was captured in the Notice of Assignment for the doctrine of LIS PENDENS to apply.

4. Whether the Assignment of the Respondent’s debt to a third party can be said to be an illegal, null and void act in the light of the Order made in Suit No. FCT/HC/CV/1856/2014.

5. Whether the loan facility availed to the Respondent by the Appellant was only secured with a landed property?

6. Whether the trial Court has the obligation to hear this matter brought under Originating Summons where there is the likelihood of dispute of facts

7. Whether the trial Court was not wrong in granting an award of damages of N20,000,000.00 (Twenty Million Naira Only) to the Respondent where the Respondent has not shown to the Court that they suffered any injury or damages as a result of the action of the Appellant.”

The Respondent formulated the following issues for determination thus:

“1. Whether the trial Court was right in its findings that the Assignment of the subject matter Plot No 2039 Masaka Close, Cadastral Zone A02, Off Olusegun Obasanjo Way Wuse 1 District Abuja by the Appellant to a third party was illegal, void, an abuse of Court process and disregard for the pending injunctive orders made in suit No FCT/HC/CV/1856/2014 pending before the FCT High Court.

2. Whether the Respondent was right to have instituted this suit via originating summons at the lower Court.

3. Whether the award of Twenty Million Naira (N20,000,000.00) as damages against the Appellant was at the discretion of the trial Court.

4. Whether the Respondent suit at the trial Court does not amounts [sic] to an abuse of Court process since Suit No FCT/HC/CV/1856/2014 and an appeal against the judgment of the trial Court in suit no. CV/1408/14 were still pending.

5. Whether the Appellant argument [sic] on Ground [sic] 8 emanated from the judgment of the lower Court.”

The Court of Appeal determined the appeal on the said issues.

DECISION/HELD:

In the final analysis, the appeal was dismissed and thus, the judgment of the trial High Court was affirmed.

RATIOS:

• ACTION – ORIGINATING SUMMON(S): Whether the mere filing of a counter-affidavit in an action commenced by the originating summons procedure will make the dispute contentious or hostile to require a writ of summons as the originating process
• APPEAL – FRESH POINT(S) ON APPEAL: Whether the issue of whether an action was rightly commenced by originating summons is a jurisdictional issue that can be raised for the first time on appeal without leave of the Court
• DAMAGES – SPECIAL DAMAGES: Whether a claim for special damages must be specifically pleaded and strictly proved
• DAMAGES – GENERAL DAMAGES: Position of the law as regards general damages
• PRACTICE AND PROCEDURE – ABUSE OF COURT/JUDICIAL PROCESS(ES): Essential element(s) that would constitute abuse of Court process; instance(s) where same will be said not to have arisen
• PRACTICE AND PROCEDURE – DOCTRINE OF LIS PENDENS: Nature and purport of the doctrine of lis pendens