INTERNATIONAL PAGEANTS & FILMS LTD. & ANOR. vs. GUARANTY TRUST BANK & ORS.(2022)LCN/16872(CA)
ISSUE: ABUSE OF COURT/JUDICIAL PROCESS-Whether an abuse of Court process evidenced by multiple suits must all together and in all cases involve the co-existence of the parties, subject-matter and issues
PRINCIPLE:
“…the starting point in the resolution of the issue is to identify the various processes examined by the lower Court in reaching its decision, and in that case, the following processes become relevant:
i. Suit with No. FHC/ABJ/CS/848/2011, filed against the following respondents.
i. Nigeria Copyright Commission
ii. British Council
iii. MTN Nigeria Communications Ltd.
iv. Style House Files Ltd.
ii. Suit with No. FHC/ABJ/CS/686/2013 filed against the following respondents.
i. Nigeria Copyrights Commission
ii. British Council
iii. MTN Nigeria Communications Nigeria Ltd.
iv. Guaranty Trust Bank
v. Arik Air (Wings Inflight Magazine)
vi. Style House Files Ltd.
iii. Suit with No. FHC/ABJ/CS/467/2014 filed against the following respondents.
i. Guaranty Trust Bank Plc
ii. Arik Aior Ltd.
iii. Style House Files Ltd.
The record goes on to show that appellants having filed suit with No. FHC/ABJ/CS/467/2014, the 1st defendant filed a preliminary objection upon the following grounds:
i. The plaintiff/respondent had previously filed a similar suit in respect of the same cause of action as in the suit against the defendant/applicant and five others at the Abuja division of the Federal High Court in Suit No. FHC/ABJ/CS/686/2013, International Pageant and Film Ltd. & Anor. vs. Nigerian Copyrights Commission & 5 Ors. presided over by Justice Ademola.
ii. Upon applications filed the defendants (including the applicant therein) challenging the competency of action on the ground inter alia that it did not disclose any reasonable cause of action against the defendant. This Honourable Court on 26th day of February, 2013 per Hon. Justice AFA Ademola struck out the respondent’s suit.
iii. Aggrieved by the Courts decision the respondents filed a notice of appeal on 11th March, 2013 against the decision of the Honourable Court in Suit No. FHC/ABJ/CS/686/2013, International Pageants and Film Ltd. & 1 Anor. vs. Nigerian Copyrights Commission & 5 Ors., the Notice of Appeal is still pending before this Honourable Court. The said Notice of Appeal is attached to the affidavit in support of this application and marked Exhibit M03.
iv. The subject matter of and relief sought in Suit No. FHC/ABJ/CS/686/2013, International Pageants and Film Ltd. & 1 Anor. vs. Nigerian Copyrights Commission & 5 Ors. is the same as subject matter and reliefs sought in the instant suit.
v. The plaintiff/respondent have now brought the instant suit to re-litigate the same cause of action which had been determined by this Court in Suit No. FHC/ABJ/CS/686/2013, International Pageants and Film Ltd. & 1 Anor. vs. Nigerian Copyrights Commission & 5 Ors.
vi. In the light of the pending appeal in the instant action against the defendant who were parties to the other suit in respect of the same cause of action amounts to an abuse of Court process.
vii. The respondent’s statement of claim (in the same way) as Suit No. FHC/ABJ/CS/686/2013, International Pageants and Film Ltd. & 1 Anor. vs. Nigerian Copyrights Commission & 5 Ors., in the instant suit does not disclose a cause of action against the applicant.
The records further bear out that arguments were taken before the lower Court, the 3rd respondent having aligned himself to the 1st respondent’s submissions, at the conclusion of which the Court agreed with the 1st and 3rd respondents, dubbed the suit filed as an abuse of Court process, and struck out the suit.
Appellant now complains that the lower Court was in error in holding that appellants suit no. FHC/ABJ/CS/467/2014 constituted an abuse of Court process owing to the pendency of appeal with No. FHC/ABJ/CS/686/2013.
The reasoning of the lower Court on the issue can be seen at pages 1097 – 1098 of the record, where he stated that:
“The Court has perused the processes filed by the parties in this suit and agrees with the submissions of the plaintiffs that the 1st defendant has not filed verifiable evidence to prove the existence of suit no. FHC/ABJ/CS/686/2013, which is the ruling of this Court at the Court of Appeal.
Before the Court is a notice of withdrawal dated 18th May, 2015 marked Exhibit A, attached to the plaintiff’s further affidavit in support of motion on notice dated 20/06/2015.
However, the Court shall note that Suit No. FHC/ABJ/CS/848/2011, which was a ground for striking out Suit No. FHC/ABJ/CS/646/2014 in the ruling marked MO@ attached to the 1st defendant/applicant’s affidavit in support to his preliminary objection of 23rd September, 2015 is still pending. Before the Court is a CTC (Certified True Copy) of the Court of Appeal judgment in Appeal No. CA/A/284/M/2012 dated 20/05/2015 where the Court of Appeal dismissed the appeal affirming the decision of the lower Court. Exhibit C of the affidavit in support of the plaintiffs motion on notice dated 20/6/2012.
The Court holds the submissions of the 3rd defendants’ counsel as there is a common subject matter in the three matters i.e. this suit as presently constituted, Suit with No. FHC/ABJ/CS/848/2011 and Suit No. FHC/ABJ/CS/686/2013 which is the alleged copyright infringement of the Lagos Fashion Week by the plaintiff and ownership of the Lagos fashion week. This can be seen in the ruling of my learned brother Justice Okorowo in Suit No. FHC/ABJ/CS/848/2011 dated 28/10/2012. (Exhibited by the plaintiff in their amended writ of summons), dated the 23/10/2014 where the reliefs are reproduced and the 3rd defendant’s Exhibit 1.
It is also evident from page 7 of Exhibit M02 which is a ruling of this Court dated 26/04/2014. The same reliefs are sought at pages 2/3 of the plaintiff’s amended writ of summons dated 24/10/2014.
From the foregoing paragraphs of this ruling, the Court upholds the submissions of 1st and 3rd defendants’ counsel that this suit constitutes an abuse of Court process.”
My Lords, permit me to be guided by the wisdom of my Lord Ogunbiyi, JSC, in Chief Great Ogboru vs. Emmanuel Uduaghan & Ors. (supra) on what constitutes the concept of abuse of Court process. The erudite jurist did say that: “The concept of abuse of Court process has been given a precise definition which is to say the process of the Court has not been used bona fide and properly. See CBN vs. Ahmed & Ors. (2001) 5SC (Pt. ii) 146; Ediorode vs. Ikine (2001) 12 SC (Pt. 11) 125. It involves an improper use of judicial process by a party in litigation. See Agwasim vs. Ojichie (2004) 10 NWLR (Pt. 682) 613 @ 624-625. Furthermore, the concept is also characterized as an action initiated without a just or reasonable cause. It merely takes an undue advantage of the reason that the process is available for indulgence. It is also a situation where the law is wrongly interpreted for the purpose of accommodating actions in bad faith. It impugns the dignity of the Court, further still and in the legal parlance, the phrase abuse of judicial process is generally employed when a party improperly uses to the irritation and annoyance of his opponent the efficient and effective administration of justice. An example is where a multiplicity of actions on the same subject matter are instituted against the same opponents on the same issues. See Okorodudu vs. Okoromadu (1977) 3SC 21; Okafor vs. AG Anambra State (1991) 6 NWLR (Pt. 200) 659 and ACB vs. Nwaigwe (2011) 7NWLR (Pt. 1246) 380. The concept of abuse therefore lies in the multiplicity and the manner employed for the exercise of the right. See Saraki vs. Kotoye (supra).”
See also Society Bic SA vs. Charzin Ind. Ltd. (supra); Ogoejeofo vs. Ogoejeofo (supra); Dana Airlines Ltd. vs. Bamaiyi & Anor. (2017) LPELR-43054 (CA) and Central Bank of Nigeria vs. Saidu H. Ahmed & Ors. (2001) FWLR (Pt. 56) 670, where the Apex Court did state that: “I venture to state quite concisely and clearly that an abuse of the process of Court is only possible by improper use of the issue of the judicial process or process already issued to the irritation and annoyance of the opponent. It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the Court. But it is so only where the action is between the same parties with respect to the same subject matter. The Court has a duty in such situation to interfere to stop an abuse of its process. See Okorodudu vs. Okoromadu (1977) 3 SC 21.”
The nagging question which must be determined is whether all or any of the attributes of an abuse of the process of Court had been shown to have been established, warranting the lower Court striking out the suit before it? I am not unaware nor have I lost sight of the fact of the appellant’s reliance on the decision of Society BIC SA vs. Charzin Ind. Ltd. (supra) to argue that for a case to qualify as such abuse of process, the parties, subject-matter and the issues involved must be the same, all co-existing to qualify the particular suit as an abuse. I do state that, an abuse of the process of Court may not all together and in all cases involve the co-existence of the parties, subject matter and issues. A situation arises where even if the three situations listed above do not co-exist, an abuse of Court process could equally occur. In finding answers to the question posed, therefore, and strictly guided by the decisions above listed, and the further decision of the Apex Court in Saraki vs. Kotoye (1992) 9 NWLR (Pt. 156), which I find quite illuminating, having stated therein that: “This Court dealt extensively with what constitutes abuse of process of Court. In his lead judgment in the case, Karibi-Whyte observed at pages 18 – 189 that “the concept of the abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety 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 recognized 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 as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting multiplicity of actions on the same subject-matter against the same opponent on the same issues…. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se.” Interestingly, though the parties in the three actions are not exactly the same, the central theme in all the suits filed touches on the entitlement of the appellants as copyright owners, and whether those rights were infringed upon, and that apart, there is no denying that in all the actions filed, the central figure is the sponsor of the alleged malfeasance.
I have carefully studied the processes filed by the appellant having in mind the submissions of the learned counsel on both sides, more so since it is clear that where the end result of the two cases is the same, the slight difference in the parties is of no importance, and do accept the submission that an abuse of the Court process need not in all cases, relate to the complaint founded on multiplicity of actions between the same parties and on the same issues as not being in all situations correct. In Dana Airlines Ltd. vs. Bamaiyi & Anor. (2017) LPELR-43054 (CA), per Abubakar, JCA, now a Justice of the Supreme Court, it was held that: “Now, the term ‘abuse of Court process’ is often seen to be synonymous with multiplicity of suits or of Court Processes, but through that in a way is a correct preposition of the law yet abuse of Court process is much more than mere multiplicity of suits or process is not the only way by which abuse of Court process could be constituted.
… what would constitute or amount to abuse of Court process is very diverse, imprecise and thus subject to infinite or indefinite considerations. In considering whether or not an action constitutes an abuse of Court process, the Court is critically consideration (sic) the peculiar facts and circumstances of each case in which the abuse of Court process is raised to determine whether in the peculiar circumstance of the affected case the act of the party complained of constitute an abuse of Court process includes but is not limited to situations where the same issues and subject matter are re-litigated.”
It is glaring therefore that appellant did file more than one suit in respect of the same subject-matter before various Courts seeking the same reliefs, even though at different times and occasions. The finding of the lower Court on there being multiplicity of suits which constituted an abuse of Court process is well founded, and this Court cannot interfere with it. It is not an excuse for the appellant to have filed multiple suits on the same cause of action, merely because the Court of trial failed and or refused to obey or is in contempt of the orders of this Court that the suit be tried on the merit, thereby instituting a fresh suit before another Court as argued. On the whole, I see no merit in the appeal as it is hereby dismissed by me.” Per BARKA, JCA.