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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON JUSTICE O.A OBASEKI-OSAGHAE DATE: February 5, 2015 SUIT NO. NICN/LA/356/2013 BETWEEN MRS. CAROLINE DENNIS DUROGBO CLAIMANT/RESPONDENT AND ZENITH BANK PLC DEFENDANT/APPLICANT REPRESENTATION A. Adedoyin Adeniyi for the claimant. V.W Olisa for the defendant RULING This is a Motion on Notice dated 6th August, 2013 filed by the defendant/applicant pursuant to Order 11 Rule 1 of the Rules of Court praying for an order dismissing or striking out this suit for being an abuse of the process of this court. The grounds upon which the application is made are as follows: 1. On 22nd March, 2013 judgment was delivered by this court in Suit No. NIC/LA/144/2011 non-suiting the claimant/respondent and granting the defendant/applicant’s counter claim. 2. The defendant is dissatisfied with the said judgment and has approached the Lagos Division of the Court of Appeal to set aside the order of non-suit and dismiss the claimant’s claim on the ground that the claimant failed woefully to prove her case. 3. The defendant’s application to the Court of Appeal has been served on the claimant herein, yet the claimant filed this suit after being served with the defendant’s application to the Court of Appeal. 4. It is the decision of the Court of Appeal that will confirm whether or not the claimant can file a fresh suit asking for the same reliefs as she did in the instant case, having woefully failed to prove her case in Suit No. NIC/LA/144/2011. 5. A favourable decision of the Court of Appeal will be rendered nugatory if this matter is proceeded with to its conclusion without waiting for the decision of the Court of Appeal. 6. Before the claimant filed this suit she had earlier filed an application in Suit No. NIC/LA/144/2011 seeking leave to amend her pleadings and call an additional witness after final judgment had been delivered in the suit, thereby abusing the process of this court. 7. Before filing this instant suit and up till this moment the claimant flagrantly disobeyed the judgment in Suit No. NIC/LA/144/2011 by refusing or defaulting to pay the judgment sum and cost awarded against her in favour of the defendant herein. 8. If this suit is proceeded with, a situation may arise where there may be two conflicting judgments in respect of the same subject matter between the same parties. The application is supported by a 13 paragraph affidavit sworn to by one Christopher Achem, a litigation officer to which is annexed 3 exhibit and a written address. The claimant reacted by filing a counter affidavit of 7 paragraphs, further and better affidavit and a written address. The defendant also filed a further affidavit and a reply on points of law Learned Counsel to the defendant raised one issue for determination as follows: Whether or not it will be appropriate and in the interest of justice to dismiss or strike out this suit for being an abuse of court process. He submitted that abuse of court process occurs where a party improperly uses the judicial process to the irritation, harassment and annoyance of his opponent and to interfere with the administration of justice citing Saraki V. Kotoye (1992) 9 NWLR (pt.264) 156, A.C.B Plc V. Nwaigwe (2011) 7 NWLR (pt.1246) 380. He submitted that it is an abuse of court process for a party to litigate again over an identical question which has already been decided against him or is still pending before a court of competent jurisdiction citing Arubo v Aiyeleru [1993] 3 NWLR (Pt 280) 126. He submitted that having become aware of the pendency of the defendant’s appeal process at the Court of Appeal seeking to challenge the judgment in Suit No. NIC/LA/144/2011 non-suiting the claimant, she ought to have waited for the outcome of the decision of the Court of Appeal before filing this fresh suit. He argued that proceeding with this suit will overreach the appeal process at and render any decision of the Court of Appeal nurgatory. He cited A.C.B Plc V. Nwaigwe (supra), Vaswani Trading Co v Savalakh [1972] 1 ANLR (Pt 2) 483, F.O.M Plc V. U.B.A Plc (2010) 1 NWLR (pt. 1176) 583, Ivory Merchant V. Partnership Inv. Ltd (1996) 5 NWLR (pt. 448) 362. Learned Counsel submitted that where a party has refuses to comply with a court order the court will not grant that party audience. He referred to paragraphs 4 and 8 of the affidavit in support and submitted that the payment of costs and the judgment sum awarded against the claimant in Suit No. NIC/LA/144/2011 is a sine qua non to the filing of any fresh suit by the claimant in these circumstances. That he who comes to equity must come with clean hands and must do equity. He referred to the case of Mobil Oil Nig Ltd & ANor V. T. Assan (1995) 8 NWLR (pt.412) 129, Shugaba V. U.B.N (1999) 11 NWLR NWLR (pt. 627) 459, F.G Lawal Osula V. Lawal Osula (1995) 3 NWLR (pt. 382) 128, F.A.T.B Ltd V. Ezegbu (1992) 9 NWLR (pt. 264) 132. Counsel submitted that in the likely event that the Court of Appeal sets aside the order of non-suit and dismisses the claimant’s case in Suit No. NIC/LA/144/2011, the decision of the Court of Appeal will be rendered nurgatory if this matter is proceeded with to its conclusion. He urged the court to dismiss this suit for abuse of court process. Learned Counsel to the claimant formulated two issues for determination as follows: 1. Whether an application praying the court for leave to appeal constitutes an appeal. 2. Whether by filing of a fresh suit after a suit was non-suited constitutes an abuse of court process. He submitted that an appeal is only predicated on a valid notice of appeal and that the defendant does not have a valid notice of appeal pending before the Court of Appeal. He submitted that where the Rules of Court mandates a party to obtain leave before filing an appeal, until such application for leave is granted and obtained there cannot be said to be a valid appeal, citing the case of Ekwerekwu V. Egboche (2010) 14 NWLR (pt. 1213) 197, Ogidi V. Egba (1999) 10 NWLR (pt.621) 42, Tarhule V. Okyomke (1998) 13 NWLR (pt.581) 293, Gambomi V. Bintumi (2010) 15 NWLR (pt.1217) 466. Counsel submitted that the defendant is oblivious of the fact until a Notice of appeal is before the court, it cannot be said that there is a pending appeal. He argued that an abuse of court process is said to occur when the process of the court has not been used bona fide and properly citing the case of Arubo V. Aiyeleri (1993) 3 NWLR (pt. 280) p. 126, Saraki V. Kotoye (1992) 9 NWLR (pt. 264) 156. He submitted that the process of this court has not been abused because there is no pending suit before the court of appeal or another court. Continuing, he submitted that the claimant has withdrawn her application seeking to amend the pleadings in Suit No. NIC/LA/144/2011 and same has been struck out as shown in Exhibit AAA1. He stated that the defendant counsel is only misleading this court as he is much aware that the application filed by the claimant was struck out on 25th June, 2013. Counsel submitted that it is a well established law that the order of non-suit allows the claimant to re-file another case and does not foreclose the right of a claimant to re-institute a non-suited case. He cited Ugbodume & Ors V. Abiegbe & Ors (1991) LPELR 3316, Eleso V. Government of Ogun State & Ors (1990) 2 NSCC 13 and submitted that the filing of this instant suit by the claimant when the court non-suited Suit No. NIC/LA/144/2011 is not an abuse of court process. He argued that the claimant does not have any pending case before another court bothering on the same subject matter and the same parties and that it is undeniable that the claimant has since withdrawn the application seeking to amend its pleadings in Suit No. NIC/LA/144/2011. He finally urged the court to dismiss this application. Replying on point of law learned counsel to the referred to Section 30 of the Court of Appeal Act and submitted that an ‘appeal’ includes an application for leave to appeal and ‘appellant’ as any person who desires to appeal from the decision of the court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf referring to Okonkwo V. U.B.A Plc (2011) 16 NWLR (pt. 1274) p614, Mohammed V. M.E Co. Ltd (2010) 2 NWLR (pt. 1179) 473. He further submitted that the judgment the defendant appealed against to the Court of Appeal No. CA/L/430M/2013 is a final judgment requiring leave. He submitted that ignoring the defendant’s application to the Court of Appeal and proceeding with this suit may amount to judicial impertinence. Having carefully considered the processes filed, the submissions of counsel and the authorities relied upon, the only issue to be determined is whether or not a notice of appeal has been filed by the defendant at the Court of Appeal in respect of the judgement in Suit No NIC/LA/144/2011 non-suiting the claimant therein. The defendant/applicant has exhibited its motion dated 16th May 2013 filed at the Court of Appeal praying for an order of leave to appeal against the judgement in line with the provisions of Section 243 (3) of the 1999 Constitution (Third Alteration Act 2010). It is trite law that in cases where the leave of Court is required to file an appeal, there is no valid notice of appeal until the leave is granted. See Gambomi v Bintumi [2010] 15 NWLR (Pt 1217) 463 at 471. There is no order exhibited by the defendant/applicant from the Court of Appeal granting the leave to appeal. I find that no valid notice of appeal has been filed by the defendant/applicant to prevent the claimant/respondent from commencing and/or proceeding with this suit. There is said to be an abuse of the process of Court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues whether in the same court or in different courts. It is not the existence or pendency of a previous suit that causes the problem, rather it is the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not yet been disposed off that constitutes abuse of process of court. See Okafor v A-G Anambra State [1991] 6 NWLR (Pt 200) 659 at 681, Kotoye v Saraki [1992] 9 NWLR (Pt 264) 156, Okorodudu v Okoromadu [1977] 3 SC 21. This is not the position in this instance. The law is settled that an order of non-suit enables the claimant to have another bite at the cherry by re-filing the suit. See Kaura V UBA [2005] 8 NWLR (Pt 926) 24. It does not constitute an abuse of the process of court. In any event there is no evidence before me that there is a multiplicity of suits filed by the claimant on the same subject matter against the defendant in this court or other courts. This motion is dismissed in its entirety. I make no order as to costs. Ruling is entered accordingly. Hon. Justice A.O Obaseki-Osaghae Judge