African Continental Bank V. Damian Ikechukwu Nwaigwe and 2 others

AFRICAN CONTINENTAL BANK PLC V.  DAMIAN IKECHUKWU NWAIGWE & 2 ORS

 LRLR VOL 5 PART 54 2011

RATIO

1. ALOMA MARIAM MUKHTAR JSC
2. WALTER SAMUEL NKANU ONNOGHJEN JSC
3. FRANCIS FEDODE TABAI JSC
4. IBRAHIM TANKO MUHAMMAD JSC
5. MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE JSC

FACTS

The 1st respondent, obtained a loan of N1.5millon from the appellant for the purchase of the equipment of his liquidated company out of which the sum of N1million was paid over to the said company while the balance of five hundred thousand naira was purportedly shared by officers in the employment of the appellant at the material time. The 1st respondent sold some of the equipment and made a refund of about N900, 000.00 of the principal sum of N1.5millon but rater 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 his goods and was also arrested and detained. Upon being released from detention he instituted an action against the appellant and two of its staff (officers) at the Upper Area Court claiming some reliefs. However, on the 22nd day of 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 defense which never took place as the trial court closed the case for the defense 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. 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 defense. A motion was later filed for leave to defend the action which was allegedly heard in chambers and refused, and the judgment was delivered on17th July, 1996.

Following the delivery of the said judgment, the 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.

The supreme court dismissed the case on the grounds that the appeal lack merit.

PRINCIPLES DECIDED IN THE CASE

1. Abuse of Court process: 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. 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 in respect of the exercise of the same right and same subject matter - relying on Arubo Vs Aiyeleru (1993) 3 NWLR (Pt.280) 126 at 142.
   

   
   
2. An Order of Certiorari: Whether or not the prerogative writ/order of certiorari is an alternative to constitutional right of appeal. 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 statutory/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 vs. Husseini (1998) 14 NWLR (Pt.584) 108 at 140.
   

   
   
3. Issue of Estoppel: 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. 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.

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