Access Bank vs Japaul Plc : FHC Judgment On Mareva Order And Jurisdiction

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Wednesday, May 8, 2019  /   01:02PM  /  By News & Investigations   / Header Image Credit: odishasuntimes.com

 

For the Records

 

IN THE FEDERAL HIGH COURT HOLDEN AT LAGOS, NIGERIA ON MONDAY THE 6th DAY OF MAY 2019 BETWEEN:

 

ACCESS BANK PLC

AND

1.      MV JAPAUL A TUGBOAT

2.     MV DOMINION [MV PINA] TUGBOAT

3.       THE VESSEL JD-1 DREDGER

4.     THE VESSEL JD -11  DREDGER

5.    THE OWNERS OF “JAPAUL A TUGBOAT AND MY DOMINION [MV PINA] TUGBOAT”

THE VESSELS JD-1 DREDGER AND JD-11 DREDGER

[Messrs Japaul Oil & Maritime Services Plc, Japaul Mines & Products Limited and Paul Abiodun Jegede]


 

ORDER

 

UPON THIS Suit dated and filed the 11th day of January, 2019.

 

  • And R.N. Ogunwande Esq of Counsel for the Defendants
  • And C.C. Ikefuna Esq of Counsel for the Plantiff/Applicant

 

Having delivered Ruling on the 6th day of May, 2019.


IT IS HEREBY ORDERED AS FOLLOWS:-

1)      The interim orders of this Court made on the 15th day January, 2019 is hereby set aside.

2)     The suit is accordingly struck out for want of jurisdiction to hear and determine same.

 

ISSUED AT LAGOS under the seal of the Court and the Hand of the Presiding Judge this 6th day of May, 2019.


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IN THE FEDERAL HIGH COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS ON MONDAY THE 6TH DAY OF MAY, 2019.

BEFORE HON. JUSTICE C.J. ANEKE, JUDGE

 

BETWEEN

 

ACCESS BANK PLC

AND

1.      MV JAPAUL A TUGBOAT

2.     MV DOMINION [MV PINA] TUGBOAT                                                                            

3.     THE VESSEL JD-1 DREDGER

4.     THE VESSEL JD -11  DREDGER

5.     THE OWNERS OF “JAPAUL A TUGBOAT AND                                                            

MY DOMINION [MV] TUGBOAT”

THE VESSELS JD-1 DREDGER AND JD-11 DREDGER

[MESSRS JAPAUL OIL & MARITIME SERVICES PLC,  JAPAUL MINES & PRODUCTS LIMITED AND PAUL ABIODUN JEGEDE ]


RULING

 

The Applicants by their Notice of preliminary Objection dated and filed on the 14th day of February, 2019 prayed this Honorable Court for the following relief to wit:

 

This suit is incompetent by reason of which this Honourable Court lacks jurisdiction to entertain same”.

 

The Preliminary Objection is predicated on seventeen [17] grounds amongst which are that:

 

5. '”Japaul Oil & Maritime Services Plc. and  Japaul Mines & Products Limited who are the 5th Defendant/Applicant (sic) herein are not indebted to the Plaintiff/Respondent in any sum of money whatsoever and howsoever as at 7th September 2018. Rather, it is the Plaintiff/Respondent that is indebted to the 5th  Defendants/Applicants to the tune of N18,728,685,622_92 (Eighty Billion, Seven Hundred and Twenty Eight Million, Six Hundred and Eight Five Thousand, Six Hundred and Twenty Two Naira  and Ninety Two Kobo Only), 05$94,890,035.01 (Ninety Four Million, Eight Hundred and Ninety Thousand, Thirty Five US Dollars and One Cent Only) and N159,135,055.65, (One Hundred and Fifty Nine Million, One Hundred and Thirty Five Thousand, Fifty Five Naira and Sixty Five Kobo Only) respectively as revealed by Forensic Consulting Reports dated 23rd  July 2018 and by reason of this, the title documents and statutory, documents of the  1st to 4th Defendants/Applicants herein/and or the 1st to 4th  Defendants/Applicants themselves are no longer securities for any facility from the plaintiff/Respondent anymore.

 

6. Pursuant to the revelation in the Forensic Consulting Reports dated 23rd July 2018 in respect [sic] Account No.0005324635 of Japaul Oil & Maritime Services Plc. from inception date of 16" June 2006 to 1st July 2018 onc Account No 0005358861 of Japoul Maritime Services Pic from 26th July 2006 to 22nd June 2018, Japaul Oil & Maritime Services Plc. and Paul Abiodun Jegede who are the 1st, 2nd, 3rd and 4th Defendants/Applicants commenced Suit No. LD/374CMW/2018: Japaul Oil & Maritime Services Plc. & Anor. Vs. Access Bank Plc. against the Plaintiff/Respondent herein at the  High Court of Lagos State Pending before Honourable Justice Ipaye seeking  the reliefs endorsed on the Writ of Summons issued on 16th July 2018 against the Plaintiff/Respondent herein with Motion for Interlocutory ',injunction filed therewith and the Plaintiff/Respondent herein also filed Counterclaim against Japaul l Oil & Maritime Services Plc, Paul Abiodun Jegede and Japaul l Mines & Products Limited at the Lagos State High Court claiming the sum of US18,112,676.71 (Eighteen Million, Twelve Thousand (sic), Six Hundred and Seventy Six US Dollars, Seventy One Cents) and N7,477,347,945.21 (Seven Billion, Four Hundred and Seventy Seven Million, Three Hundred and Forty Seven Thousand, Nine Hundred and Forty Five Naira Twenty One Kobo] being outstanding indebtedness and accrued interest as well as interest thereon.

 

7 .By virtue of the revelation in the Forensic Consulting Reports dated 23' July 2018 in respect of Account No. 0041775079 of Japaul Mines & Products Limited covering 2nd March 2012 to 31st July 2018, Japaul Mines & Products Limited and Paul Abiodun Jegede who are the 1st, 2nd, 3rd, and 4th Defendants/Applicants commenced Suit No. LD/3744CMW/2018: Japaul Mines & Products Limited & Anor. Vs. Access Bank Plc. Against the Plantiff/Respondent herein at the High Court of Lagos State pending before Honourable Justice K.A. Jose seeking the reliefs endorsed on the Writ of Summons issued 16th July 2018 against the Plaintiff/Respondent herein with Motion for Interlocutory injunction filed therewith consequent upon which the Plaintiff/Respondent herein filed its Statement of DEFENCE ON 26TH October 2018.

 

8 .In consideration of the fact that the High Court of Lagos State cannot entertain matters relating to foreclosure of ALL Assets Debenture and Winding up Proceedings, Japaul Mines & Products Limited, Japaul Oil & Maritime Services Pic. and Paul Abiodun Jegede commenced Suit No. FHC/L/CS/1222/2018: Japaul Mines & Products Limited & 2 Ors. Vs Access, Bonk Plc against the Plaintiff/Respondent herein at the Federal High Court, Lagos Division pending before Honourable Justice Oguntoyinbo seeking the reliefs endorsed on the Writ of Summons issued on 19th July 2018 against the plaintiff/Respondent herein consequent upon which the plaintiff/Respondent herein filed its Memorandum of Conditional Appearance on 6th August 2018 and a Preliminary Objection on 26th October 2018 without filing Statement of Defence. The Defendants/Applicants hove also filed their Counter Affidavit to the Preliminary Objection”.

 

In support of the application is an affidavit of twenty-eight (28) paragraphs and further affidavit of 23 paragraphs deposed to by one FUNMILOLA. OMODAMORI, an Accountant in the employ of the 5th Defendant/Applicant and a written address of learned Counsel dated the 14th day of February, 2019, wherein two issues were formulated for determination to wit:

 

1. “Whether the Honourable Court has jurisdiction to entertain this suit?

 

2. Whether in view of the pendency and subsistence of Suit No 1.0/3741CMW/2018- Japaul Oil & Maritime Services Pic. & Anor. Vs. Access Bank Plc, Suit No 1.0/3744CMW/2018: Japaul Mines & Products Limited & Anor. Vs. Access Bonk Plc.; Motion on Notice for interlocutory Injunction; Suit No: FHC/L/CS/1222/2018:  Japaul Mines & Products Limited & 2 Ors. Vs. Access Bank Plc. Particularly statement of Defence and Counter Claim in Suit No: LD/3742CMW/2018: Access Bank Plc. Vs. Japaul Oil & Maritime Services Plc., Paul Abiodun Jegede and Japaul Mines & Products Limited pending before Honourable Justice Ipaye at the Lagos State High Court, this suit constitutes an abuse of Court process?”

 

In arguing the issues raised, learned Counsel submitted that jurisdiction of Court is determined by the Claimant's Claim as endorsed in the Writ of Summons and Statement of Claim relying on the case of GOLDMARK (NIG) LTD v. IBAFON CO; LTD (2013) ALL FWLR (PT. 663) 1830 at 1855 para. G. It was submitted that the subject matter of this suit is the All Assets Debenture and Deed of Legal Mortgage purportedly executed in favour of the Plaintiff/Respondent in respect of facilities purportedly granted the 5th Defendant/Applicant while the subject matter of the Plaintiff/Respondent tin, Counter Claim, Constituted in Suit No LD/3742 CMW/2018: ACCESS BANK PLC. V. JAPAUL OIL & MARITIME SERVICES PLC, PAUL ABIODUN JEGEDE AND JAPAUL MINES & PRODUCTS LIMITED pending before Honourable Justice Ipaye at the Lagos State High Court is the recovery of an alleged indebtedness in the sum of US18,112,676.71 [Eighteen Million, Twelve Thousand, Six Hundred and Seventy Six US Dollars, Seventy One Cents] and  N7,477,347,945.21 [Seven Billion, Four Hundred and Seventy Seven Million , Three Hundred and Forty Seven Thousand, Nine Hundred and Forty Five Naira, Twenty on Kobo] being outstanding indebtedness and accrued interest as well as interest  thereon in respect of the same facilities allegedly granted to the 5th Defendant/Applicant The Court was referred to paragraphs 1 to 25 of the Statement of Claim herein and paragraphs 41 - 59 of the Counterclaim constituted in Suit No: LD/3742CMW/2018. ACCESS BANK PLC V. JAPAUL OIL & MARITIME SERVICES PLC, PAUL ABIODUN JEGEDE AND JAPAUL MINES & PRODUCTS LIMITED Pending before Honourable Justice Ipaye at the Lagos State High Court.

 

It was submitted that the concept of abuse of judicial process is Imprecise and involves circumstances and situation of infinite variety and conditions which it) common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice relying on the case of SARAKI v. KOTOYE (1992) 9 NWLR (PT. 264) 156 at 188 - 189. It was also submitted that in order to determine abuse of Court process in the present suit, the Court need to consider how simultaneously the different suits were filed by the Plaintiff/Respondent. It was further submitted that the Counter Claim as constituted in Suit No: 10/37,17CMW/201.8. ACCESS BANK PLC V. JAPAUL OIL & MARITIME SERVICES PLC., PAUL ABIODUN JEGEDE AND JAPAUL MINES gt PRODUCTS LIMITED before Honourable Justice Ipaye at the Lagos State High Court, is still pending before the Court against the Plaintiff/Respondent and yet the Plaintiff/Respondent instituted this suit instead of filing its Defence and/or Counter Claim to the 5th Defendant/Applicant’s claim in the Lagos State High Court constitutes an abuse.

 

It was contended that a litigant has no right to pursue pare passu two processes which will have the same effect in two Courts at the same time, with a view  to obtaining victory in one of the processes or in both, as litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. The Court was referred to the case of ASLEY AGWASIM & ANOR V. DAVID OJICHE & ANOR [2004] 4 S.C. [PT.11] PG.160.

 

This Court was therefore urged to resolve the two [2] issues posed in favour of the Applicant by holding that this suit is an abuse of Court process.

 

In opposition, learned Counsel for the Plaintiff/Respondent, filed an affidavit of five (5) paragraphs deposed to by one ADEKUNLE FOLORUNSHO, a litigation Officer in the Law Firm of Jireh & Greys Attorneys, Counsel to Plaintiff/Respondent as well as a written address dated the 27th day of February, 2019 wherein a sole issue was formulated for determination to wit:

“Whether having regard to the circumstances of this case the Plaintiff/Respondent's action is an abuse of judicial process?”

 

It was contended that the Courts have held in a plethora of authorities that a litigant will not be allowed to abuse the process of the Court or to improperly use the process of the Court to irritate and annoy his opponent or otherwise interfere with the efficient and effective administration justice. The Court was referred to the case of OLAYINKA V. ADEPARUSI & ANOR [2011] LPELR-8691 [CA]. It was furthered contended that the present action is purely an admiralty action in rem, which is mainly an action against the 1st, 2nd, 3rd and 4th Defendants. Also, that it is in the fact the 5th Defendant/Applicant who has abused judicial process by filing Suit No: LD/3742CMW/18 and Suit No: LD/3744CMW/18 at the Lagos State High Court on the 16th July, 2018, before two different Courts against the same parties and seeking the same reliefs in respect of the same subject-matter.

 

It was submitted that the subject matter of the Plaintiff/Respondent claim before this Honourable Court is within the purview of a maritime claim as, captured under Section 2 of the Admiralty Jurisdiction Act. It was further submitted that by a close and careful perusal of the pleadings placed before the Court and the reliefs being sought, the Plaintiff/Respondent has shown clearly that its claims falls under the admiralty Jurisdiction of the Federal High Court as a maritime claim pursuant to Section 2 of the Admiralty Jurisdiction Act. The Court was referred to the case of THE M.V. 'MED QUEEN" v. ERINFOLAMI (2008) NWLR (PT. 1074) 314 at 327, para D.

 

It was contended that from the pleadings of the Plaintiff vis-a-vis the reliefs being sought, it is clear that the 1st, 2nd, 3rd and 4th   Defendants are charged assets of the loan facilities in which their purchase was financed by the Plaintiff/Respondent with their original title documents with the Plaintiff/Respondent. That the said vessels are properties of the Plaintiff/Respondent and the present action is only initiated to take ownership and possession.

 

It is the contention of learned Counsel that the State High Court cannot maintain, and/or assume Jurisdiction of the charged assets of the loan facilities in which their purchase was financed by the Plaintiff/Respondent with their original title documents with the plaintiff/Respondent.  It was contended that the present action, being an admiralty action in rem mainly against 1st, 2nd, 3rd, and 4th Defendants and the Order to arrest the 1st, 2nd, 3rd, and 4th Defendants which is a precondition for the commencement of an admiralty action in rem, cannot amount to multiplicity of  action or abuse of any Judicial process.

 

It was submitted that the Plaintiff/Respondent has not concealed nor suppressed any material facts as the 5th Defendants/Applicants, have not shown to this Honourable Court that they have liquidated their indebtedness to the Plaintiff/Respondent. It was further submitted that the present action is separate and distinct from the actions at the State High Court as the parties are different, the reliefs are different, the cause of action is different and the subject matter is different.

 

Counsel contended that the Plaintiff's Writ and Statement of Claim are the only relevant documents to be considered on jurisdiction.  He referred the Court to the case of GOVERNMENT OF KWARA STATE v LAFIAGI [2005] NWLR (PT. 917) 139 at .151 para D. It was submitted that the litmus test for admiralty actions is basically that all claims must fall under maritime claims as defined in Section 2 of the Admiralty Jurisdiction Act which sets out the propriety and general maritime claims. The court was also referred to Section 5 [1]-[5] of the Admiralty Jurisdiction Act. 

 

Counsel further contended that the Applicant is expected under the Admiralty Jurisdiction Procedures Rules, 2011 to file a Writ of Summons at the Federal High Court which is a succinct description   f Summons at the Federal High Court which is a succinct description of his claim usually on a page and each process must be titled “Admiralty in Rem”  with a written application addressed to the Registrar to issue a Writ of Summons, undertaking in the said application to pay the fees as may be assessed. He referred the Court to the provisions of Order 3 Rule 3 [1] and 8 of the Admiralty Jurisdiction Procedure Rules, 2011.

 

In all, this Honourable Court was urged to dismiss the instant Notice of Preliminary Objection in the interest of justice as same was brought mala fide.

 

The Defendants/Applicants in their reply on points of law dated the 25th day of March, 2019 submitted that the paragraph 4 [particularly paragraph 4i to 4xxix, 4xxx and 4xxxi] of the Plaintiff/Respondent’s Counter affidavit are inadmissible hearsay and that the Defendants/Applicants have shown that OLADAYO OGUNGBE ESO the informant of ADEKUNLE FOLORUNSGO, the deponent in the Plaintiff’s Counter affidavit is not in the employ of the Plaintiff/Respondent by reason of which the information he informed the Deponent runs afoul of the combined effect of section 115 and 126 of the Evidence Act, 2011 when read together and thereby constitutes inadmissible hearsay. It was further submitted that the requirement of the Evidence Act for disclosure of the source of information by the Deponent is to give the adverse party such as the Defendants/Applicants and the Honourable Court the opportunity to verify the claim of the deponent. The Court was referred to the case of ABIODUN v. CHIEF JUDGE OF KWARA STATE [2007] 18 NWLR [PT. 1065] 109 CA at 144, paras B-E.

 

It was submitted that the averment contained in paragraph 4i to 4xxxviii of the Plaintiff/Respondent constitute a sweeping denials which does not controvert any of the averment contained in paragraphs 9 to 16 of the Defendant/Applicants’ affidavit in support. It was submitted that where a party filed an affidavit deposing to certain facts which are material to the case in dispute, the opposing party has a duty to counter those facts by way of a counter affidavit and failure to do so, those facts must be deemed unchallenged relying on the case of OGOEJEOFO v. OGOEJEOFO [2006] 3 NWLR [PT. 966] 205 SC.

 

In all, the Honourable Court was urged to dismiss and /or strike out this case in its entirety as it constitutes abuse of Court process.

 

The Applicants by their Motion on Notice dated and filed on the 14th day of February, 2019 prayed the Honourable Court for the following reliefs:

 

1. An Order of the Honourable Court extending the time within which the Applicants may apply to discharge the Order of the Honourable Court made herein on  15`'' January, 2019.

 

2. An Order of the Honourable Court discharging unconditionally the Ex parte Order of arrest of the 1st, 2nd 3rd and 4th Defendants/Applicants made by the Honourable Court on 15' January. 7019

 

3. An Order of the Honourable Court discharging unconditionally the Order of mandatory preservative injunction, mareva injunction, leave to serve Originating Processes including warrant of arrest, service of mareva injunction on Banks pending the determination of this suit made ex parte by the Honourable Court in this suit on 15th January, 2019.

 

4. And for such further Order and/or other Orders as this Honourable Court may deem fit to make in the circumstances.”

 

The grounds upon which the application is brought were duly set out on the face of Motion.

 

The application is supported by an affidavit of thirty (30) paragraph and further affidavit of twenty-Three (23) paragraphs deposed to by one FUNMILOLA OMODAMORI as well as a written address of Counsel dated and filed on the 14th day of February, 2019  wherein three (3] issues were formulated for determination to wit:

 

1. “Whether the Honourable Court can extend the time within which to apply to discharge the Order made on 15th January, 2019?

 

2. Whether the Honourable Court can discharge the Order of the Honourable Court made via Motion Ex parte on the 15th January, 2019 to arrest the 1st, 2nd, 3rd and 4th Defendants/Applicants herein and the mandatory, preservative injunction, and leave to serve the Order obtained Ex parte on the Banks, being operated by the Defendant/Applicants pending the determination of the substantive suit herein?

 

3. Whether the Defendants/Applicants are entitled to the relief being claimed herein?

 

In arguing Issue 1, the learned Counsel submitted that an application of this nature is one that calls for the exercise of the Court’s discretionary powers and a party who is seeking for the indulgence of the Court has to place all the necessary materials before the Court to enable the Court exercise its discretion in his favour relying on the case of WILLIAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145. It was further submitted that the Applicant has placed all necessary materials before the Court and the Court is prayed to exercise its discretion judicially and judiciously in the Applicant’s favour.

 

On issue 2 and 3, it was contended that Courts have the inherent powers to discharge any Order obtained by fraud/misrepresentation by any party in a suit, the Order being a nullity. The Court was referred to the case of VULCAN GASES LTD v. G.F. NO A-G (2001) 9 NWLR (PT. 719) 610 at 655. It was submitted that a careful study of the affidavit evidence before the Honourable Court show that the Order of arrest of the 1st, 2nd, 3rd and 4th Defendants/Respondents made by the Honourable Court on 15th January, 2019, Order of Mandatory Preservative Injunction, Order of  Mareva  injunction and the leave to serve Originating Processes including warrant of arrest, service of Mareva Injunction on Banks  pending the determination of this suit made ex parte by the Honourable Court on 15th January, 2019 were obtained by fraud as the Plaintiff/Respondent 'fraudulently concealed the material facts now revealed by the affidavit evidence before the Honourable Court.

 

This Honourable Court was thus urged to exercise its discretion in favour of the Applicants herein by granting this application in terms of the motion paper.

 

In opposition, learned Counsel for the Plaintiffs/Respondents filed an affidavit of five [5]  paragraphs deposed to by one ADEKUNLE  FOLORUNSHO and a written  address as dated and filed on the 27th  day of February, 2019 wherein a lone Issue was formulated for determination to wit:

 

Whether having regard to the circumstances of this case the Plaintiff/Respondent’s action is an abuse of judicial process?”

 

On the issue of abuse of Court process, the Plaintiff conceded that Courts have held in a plethora of authorities that a litigant will not be allowed to abuse the process of the Court or to improperly use the process of the Court to irritate and annoy his opponent or otherwise interfere with the efficient and effective administration of justice. The Court was referred to the case of Olayinka v. ADEPARUSI & ANOR [2011] LPELR-8691 [CA].

 

It is the contention of the Plaintiff that the present action is purely an admiralty action in rem, which is mainly an action against the 1st, 2nd, 3rd and 4th Defendants and that the 5th  Defendant abused the judicial process of the Court by filling Suit No: LD/3742CMW/18 and Suit No: LD/3744CMW/18 at the Lagos State High Court on the 16th July, 2018 before two different Courts against the same parties an seeking the same reliefs in respect of the same subject-matter.

 

It was submitted that the subject matter of the Plaintiff’s claim before this Honourable Court is within the purview of a maritime claim as captured under section 2 of the Admiralty Jurisdiction Act. It was further submitted that by a close and careful perusal of the pleadings placed before this Court and by the reliefs being sought, the plaintiff has shown clearly that its claims falls under the admiralty jurisdiction of the Federal High Court as a maritime claim pursuant to Section 2 of the Admiralty Jurisdiction Act.

 

It was contended that the State High Court cannot maintain and/or assume jurisdiction of the charged assets belonging to the Plaintiff. It was further contended that the Plaintiff has not concealed or suppressed any material fact as the 5th Defendant have not shown to this Honourable Court, that they have liquidated their indebtedness to the Plaintiff, it was contended that the Plaintiff/Respondent by this action has compiled with the requirements of the law to commence an action in rem and thereby clothes the Court with the requisite jurisdiction to hear and determine the present action.

 

In response to other counter affidavit of the Plaintiff/Respondent, the Plaintiff/Respondent, the Defendants filed their reply on points of law dated 35th day of March, 2019 and the arguments contained therein are on all-fours with the arguments canvased y the Defendant in its reply on points of law dated 25/3/2019 in the Preliminary Objection dated 14/2/2019.

 

To my mind the sole formulated by the Plaintiff/Respondent is quite apt for the determination of the Defendants/Applicants’ Notice of Preliminary Objection which is hereby adopted by this Honourable Court to wit:

'Whether having regard to the circumstances of this case the Plaintiff/Respondent's action is on abuse of judicial process?”

 

A preliminary objection Is one that comes before and usually leads up to the main part of the case as a pre-emptive attack such that if successful it may terminate the case and render further proceedings before the court impossible and unnecessary See the case and render further proceedings before the court impossible and unnecessary. See the case of ONI v. FAYEMI (2013)12 NWLR (PT. 1369) 431 at 447 and Black's Law Dictionary Eight Edition 1218. It is taken at the threshold stage of the case. It does not constitute a final resolution of the whole controversy or dispute on the merit and does not dispose of the rights of the Parties in the case. Since it is an objection to the regularity of a court process with the primary objective to terminate the proceedings at the stage it is raised, its purpose is therefore to truncate the hearing of the case in limine and/or without disposing of the rights of the parties on the merit in the substantive action. See the cases of KENTE v. ISHAKU & ORS (2017) 15 NWLR (PT. 1587) 94 at 114, KLM ROYAL DUTCH AIRLINES A. HAMILAT ALOMA (2018) 1 NWLR (PT. 1601) 473 at 490-491 and A.G., FED v. RINCE BURUJI KASHAMU & 12 ORS. CAL/L/1030/2015 delivered on 4th day of May, 2018.

 

The Defendants/Applicants have submitted that from the affidavit evidence before the Honourable Court it is clear that the Interim Orders made by the  Honourable Court it is clear that the interim Orders made by the Honourable Court on 15th January, 2019 including the arrest of the 1st, 2nd, 3rd and 4th  Defendants/Respondents were obtained by fraud as the Plaintiff/Respondent fraudulently concealed the material facts that apart from the two suits involving the parties herein at the High Court of Lagos State which cannot entertain matters relating to foreclosure of ALL Assets Debenture and Winding Up Proceedings, Japaul Mines & Products Limited, Japaul Oil & Maritime Services Plc. and Paul Abiodun Jegede commenced Suit No FHC/L/CS/1222/2018: Japaul Mines & Products Limited & 2 Ors Vs. Access Bank Plc. against the Plaintiff/Respondent herein at the Federal High Court, Lagos Division currently pending before Honourable Justice Oguntoyinbo seeking the reliefs endorsed on the Writ o' Summons issued on 19th  July 2018 against the Plaintiff/Respondent herein. Consequent upon which the Plaintiff/Respondent herein filed its Memorandum Conditional Appearance on 6th August 2018 and a Preliminary Objection on 26th October 2018 without filing Statement of Defence.  The Plaintiff/Respondent on the other hand has responded with gusto that the present action is purely an admiralty action in rem, which is mainly an action against the 1st 2nd  3rd and 4th Defendants and that it is in fact the 5th Defendant/Applicant who has abused  judicial process by filing Suit No: LD/3742CMW/18 and Suit No LD/3744CMW/14 at the Lagos State High Court on the 16th July  2018,  before two different Courts against the same parties and seeking the same reliefs in respect of the same subject-matter and that Order to arrest the 1st, 2nd, 3rd, and 4th  Defendants is a precondition for the commencement of an admiralty  in rem and does not amount to multiplicity of action Or abuse of any judicial process. Therefore, that the Plaintiff/Respondent has not concealed nor suppressed any material facts the 5th  Defendants/Applicants, have not shown to this Honourable Court that they have liquidated their indebtedness to the Plaintiff/Respondent. That the present action is separate and distinct from the actions at the State High Court as the parties are different, the reliefs are different, the cause of action Is different and the subject matter is different.

 

Now the simple question to ask in the circumstances of this case, is this, would this  Honourable Court have granted the Interim Orders of the 15th  day Of January, 2019,  as it did, if the pendency of the Suit No. FHC/L/C5/1222/2018: Japaul Mines & Products Limited & 2 Ors. Vs. Access Bank Plc. (the Plaintiff/Respondent herein) at the Federal High Court, Lagos Division currently before Honourable Just. Oguntoyinbo was brought to its attention?  My simple answer is in the negative. This is because it is trite law that where a Court is aware that another Court of co-ordinate jurisdiction is seised of a case with same and/or similar parties and the same subject matter before it. “It is an abuse of process for that Court to continue with the hearing of the case." See the Supreme Court case of N.I.M.B... LTD v. U.B.N. LTD (2004) 12 NWLR [PT. 888) 599 at 625 per EJIWUNMI, JSC.

 

In the case of SARAKI v.  KOTOYE 1992 9 NWL [PT. 764) P. 156 at 188 — 189, the Supreme Court also held that:

 

“The concept of abuse of judicial processes is imprecise. It involves circumstances situations of infinite varieties and conditions. It’s one common feature is the improper use of judicial process by a party in litigation to interfere with 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 litigations. But the employment of judicial process is only regarded generally 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 a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3 SC. 21; Oyegboia v. Esso West African Inc. (1966) 1 All Nil 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se.

 

The abuse consist in the intention, purpose, and aim of the person exercising the right to harass, Irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds. See Harriman v. Harriman (1989) 5NWLR Pt. 119. Similarly so held was where two similar processes were used in respect of exercise of the same right, namely a cross-appeal and a respondent's notice See Anyaduba v. N.R.T Co. Ltd /1990) 1 NWLR Pt. 127 P. 397; Jadesimi v. Okotie-Eboh (1986) 1 NWLR Pt 16 P. 278.”

 

The Defendants/Applicants have therefore demonstrated to the satisfaction of this Honourable Court how the instant suit constitutes an abuse of judicial or Court process for instance it has been shown that the is a multiplicity of actions on the same subject matter against the same opponents on the same and/or similar issues and that the instant suit constitutes the use of judicial process to the irritation and annoyance of the Defendants/Applicants to truncate the efficient and effective administration of Justice. All these have been demonstrated to the case herein. I hold therefore that this suit constitutes abuse of Court or judicial process thus robbing this Honourable Court of the requisite jurisdiction to hear and determine same.

 

In the result, the interim Orders of this Honourable Court made on the 15th day of January, 2019 are hereby set aside and the suit accordingly struck out for want of jurisdiction to hear and determine same.

 

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2.      JAPAULOIL Declares N555.70mln Loss in Q1 2019 Result,(SP:N0.36k)

3.      JAPAULOIL Declares N6.59bln Loss in 2018 Audited Result,(SP:N0.57k)

4.      JAPAULOIL Declares N6.59bln Loss in 2018 Audited Result,(SP:N0.57k)

5.      JAPAULOIL Declares N5.5 bn Loss in Q3 2018 Result,(SP:N0.21k)

6.      JAIZBANK, JAPAUL and 40 Others Trade Below 50kobo as at November 15, 2018

7.      JAPAULOIL Appionts Mr Akinloye Daniel Oladapo as CEO and Other New Directors

8.      Access Bank Q1 2019 Results Review: Still Sizable Upside Potential Post Q1 Results

9.      ACCESS Declares N41.15bn PAT in Q1 2019 Results,(SP:N6.05k)

10.   ACCESS Updates on Scheme Consideration of Cash and Shares for Shareholders of DIAMONDBNK

11.    A Garnishee Lacks The Power To Fight The Cause Of A Judgement Debtor

12.   A Fool’s Guide To Innoson Vs Customs and GTBank

13.   GTB Reacts To Judgement Awarding Billions to Innoson Motors; What Happens Next?

 


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