By Onikepo Braithwaite
FBN v GHL: Abuse of Court Process
In setting the 2025 agenda for the Nigerian Judiciary, topmost on the list for the Chief Justice of Nigeria, Kudirat Motonmori Olatokunbo Kekere-Ekun, GCON (CJN), should be the eradication of abuse of court process/indiscipline which has become a negative trend in our legal system.
Last week, we were inundated with the news that First Bank of Nigeria Plc (FBN) had obtained an ex-parte Federal High Court (FHC) Interim Order per Dipeolu J. dated 30/12/24, freezing the accounts of General Hydrocarbons Limited (GHL) and others to the tune of $225+ million, being the alleged indebtedness of GHL to FBN (Suit No.FHC/L/2378/2024). I must state that I am not aware of the actual facts of the case, having not had the opportunity to peruse any originating process or defence therein, and so, I am therefore, not in a position to comment on the merits of the case. But, with the letter of Dr A.I. Layonu, SAN, Counsel to GHL dated 9/1/25 written to the Banks, and the two court orders (one from each case) that have circulated so far, some facts glaringly point to a case of forum shopping/abuse of court process on the part of FBN.
Prior to the order of 30/12/24, GHL had filed Suit No. FHC/L/CS/1953/2024 at the FHC Lagos Division against FBN (from the suit number, it is clear that GHL’s case is first in time), in which a judgement per Allagoa J. dated 12/12/2024 was delivered, restraining FBN from inter alia, obstructing or preventing any loan facilities or funding for the exploration or operation of OML 20 and from taking steps to enforce any security, receivables etc against GHL, pending the hearing and determination of the ongoing arbitration proceedings between GHL and FBN. It is pertinent to note that, both GHL and FBN were heard and argued GHL’s application in Allagoa J’s court in this earlier matter filed by GHL, and being a party to this suit and very aware of this judgement, FBN still went ahead to file a fresh matter, using the same law firm that had handled the first GHL case, also at the FHC Lagos Division and obtain an ex-parte order that somehow reversed Allagos’s earlier judgement. This is a flagrant abuse of court process, as it is trite that a court of coordinate jurisdiction, let alone the same court, that is, one court of the FHC cannot sit as an appeal court over the decision of another court of the FHC – see Sections 241-243 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution).
In Ogboru & Anor v Uduaghan & Ors (2013) LPELR-20805(SC) per Clara Bata Ogunbiyi, JSC, the Supreme Court held that abuse of process was defined at Page 11 Black’s Law Dictionary 9th Edition as “The improper and tortuous use of a legitimately issued court process, to obtain a result that is either unlawful or beyond the process’s scope”. In the latter case of FBN v GHL, the result of purporting to freeze the accounts of GHL (Mareva Injunction) appears to be unlawful, bearing in mind the earlier judgement of Allagoa J., and FBN’s only available option of appeal following Allagoa J’s judgement. Also, in Okafor & Ors v AG Anambra & Ors (1991) LPELR-2414(SC) per Adolphus Godwin Karibi-Whyte, JSC, the Supreme Court held that “It is the law that multiplicity of actions on the same matter, may constitute an abuse of the process of the court. But, this is only where the action is between the same parties with respect to the same subject-matter”. Definitely GHL and FBN were parties in both cases, even though many more parties were added to the second case, to throw people off the scent that it is the same case and same subject-matter. From a perusal of FBN’s abusive motion ex-parte, it is crystal clear that the 4th – 6th prayers were more or less an appeal, but to the same FHC, not the Court of Appeal, asking for the reversal of Allagoa J’s judgement; and it follows that, if the ex-parte order in the FBN case reversed Allagoa J’s judgement, which, effectively it did, the subject-matter of both cases must be the same or closely related.
The Supreme Court also held in First Bank v TSA Industries Ltd (2012) LPELR-9714(SC) that “An abuse of process always involves some bias, malice, some deliberateness, some desires to misuse or pervert the system”. I submit that, from the foregoing, this is a fine example of abuse of process as it is undeniable that these elements – bias, malice, deliberateness, were present in FBN’s action of knowingly securing an ex-parte order, using the same law firm that represented it during the first GHL case, approaching another court of the same FHC Division during the court’s Christmas vacation instead of going on appeal, to obtain an order that reversed Allagoa J’s judgement, and somewhat sneakily too, since the order was obtained without GHL being put on notice.
It is trite law that when a litigant is dissatisfied with the decision of a court, the only option open is to file an appeal to a higher court. In this circumstance, FBN had a right of appeal to the Court of Appeal – see Sections 241-243 of the Constitution. Instead, what FBN did in the latter case filed at Dipeolu J’s court, was to undermine the authority of the FHC per Allagoa J. See APC & Ors v Karfi & Ors (2017) LPELR-47024(SC) per Ejembi Eko, JSC where the Supreme Court held inter alia that, the right of appeal is a constitutional right and “self-help has no place in a democratic society that savours the rule of law”. I submit that FBN resorted to self-help, and this doesn’t augur well for one of the oldest banking institutions in Nigeria.
It could very well be that Dipeolu J. may not have been aware that the first case was already before his brother Judge, and had been decided in Allagoa J’s court – this much was stated in GHL’s Counsel’s 9/1/25 letter. But, nevertheless, it is still a classic case of forum shopping/abuse of court process on the part of FBN and its Counsel, if not the Judge, in which case it would require the Legal Practitioners’ Disciplinary Committee (LPDC)’s attention or the Legal Practitioners Privileges Committee (LPPC) with regard to the discipline of FBN’s Counsel who are Senior Advocates of Nigeria. In fact, apart from GHL, Dipeolu J. could also report FBN’s Counsel to the LPPC for their misconduct. To restore the integrity of the Judiciary/legal profession erring members, be it Counsel or Judicial Officers must be disciplined. Without this, misbehaviour will continue with gusto and aplomb.
Additionally, if Dipeolu J. was unaware of the existence of the previous case, the next item on the Judiciary’s 2025 agenda, should be the establishment of a central pool for each court, for example, all the FHC Divisions, so that once a case is assigned to a Judge he/she is able to enter the names of the parties into the system to ascertain if the matter is already before another court of the FHC. This is just a start though, as we see forum shopping cut across different Judicial Divisions such as the FHC and various State High Courts, as in the Rivers State House of Assembly matters, and that of the Kano State Emirate issue. In fact, maybe the central pool can be like a google search engine, utilised by all Judges of Superior Courts of Record for instance, whether Federal or State, to gather such basic information about litigants and cases that may have already been filed. A common complaint of Judges, is that they were misled or unaware that cases were already before other courts. However, this complaint may not hold water for cases that are already public knowledge, or one where everything concerning the case occurred in Enugu, but Counsel has come to file in Kaduna and the Kaduna Judge hears the matter.
John Yakubu Yusuf’s Conviction
Last week, one of our Columnists sent me a forward that made the rounds on social media, stating that one Yakubu Yusuf who had been convicted of embezzlement of N22.9 billion, would only forfeit property worth N325 million and pay a N250,000 option of fine in lieu of 2 years imprisonment. This incorrect version of the case that made the rounds on social media is a half truth, which is as usual, designed to malign the Judiciary, while the correct version of the facts of the case which I have summarised here, are readily available on the Economic and Financial Crimes Commission (EFCC) website, for those who are interested in the verification of information before dissemination!
John Yakubu Yusuf was actually an Assistant Director at the Police Pension Office, who was prosecuted by the EFCC for the theft of N32.8 billion alongside five of his colleagues. He was initially convicted by Abubakar Talba J. of the FHC Abuja Division, and sentenced to two years imprisonment with an option of a N750,000 fine. The EFCC being dissatisfied with the decision, however, appealed to the Court of Appeal, which subsequently, in a unanimous decision, sentenced Yusuf to six years imprisonment and ordered him to repay N22.9 billion, having pleaded guilty to three of the counts and admitting to converting about N24 billion. The Supreme Court per Tijjani Abubakar, JSC affirmed the Court of Appeal’s judgement.
The caption which accompanied that incomplete social media story that was popularised is, “Nigeria, we hail thee….What a Judiciary, what a Country”. How can a Judiciary of over 1,300 judicial officers be adjudged on Talba J’s one perverse decision? Even in this Yusuf case, 9 judicial officers partook in it – Talba J, 3 Court of Appeal Justices and 5 Supreme Court Justices. Should the other 8 Justices who corrected the FHC judgement, be tarred with the brush of Talba J’s questionable/perverse judgement, let alone the whole Judiciary? My argument has always been that, we must learn to situate our criticisms in the exact spot where they belong. While I do agree that we have had some perverse decisions similar to that of Talba J’s, we have many more sound decisions in comparison.
I certainly believe in freedom of expression guaranteed by Sections 39(1) (& 22) of the Constitution, but I can never subscribe to the mischievous dissemination of reckless speech/half truths/outright falsehood, aimed at disparaging individuals and institutions, causing disaffection and heating up the polity. This is of no benefit whatsoever; on the contrary, it is destructive, because the more such incorrect narratives are spread, the harder it is for people to believe the truth.
More Items for the Nigerian Judiciary’s 2025 Agenda
Just like Dr Willy Mutunga, the former Chief Justice of Kenya (2011-2016) was able to implement his ‘Judiciary Transformation Framework’ which successfully changed the face of justice in Kenya, the CJN must also publish her own agenda and design the steps she will take to achieve her goals like Dr Mutunga did; because like Kenya then, we also have similar goals to achieve in our justice system – transparent and good recruitment/appointment system for judicial officers based on merit; elimination of corruption; reduction of delays; better access to justice for citizens; fostering professionalism, competency and efficiency; entrenching discipline, training of judicial officers and staff, and leveraging on technology.
It is important for there to be assessment of Judges, not just on the number of judgements they write, absenteeism, what time they sit etc, but, actual tests of their knowledge, because part of the complaint about the Judiciary today is that, some of the judicial officers are incompetent, and because some may have been selected as a result of nepotism and other reasons not remotely connected to their ability, such people must be weeded out of the Judiciary soonest, seeing as an incompetent Judge is just as dangerous as a corrupt one. There must also be regular training of Judges in the interpretation of the Constitution, the Electoral Act 2022 (since the High Court Judges double as Members of Election Petition Tribunals) and judicial procedure.
It is also time to address the remuneration of Magistrates, and their conditions of service. Qualified Lawyers earning less than N200,000 per month? This is disgraceful. It is as if the Magistracy which is actually the first point of contact of majority of the Nigerians with the Judiciary, hasn’t just been ignored, but totally forgotten. Urgent reforms are required here.
Could it also be the time for the Supreme Court of Nigeria to have a proper Communications Department, like that of the UK that has a Press Office complete with a Head of Communications and Communications Manager? The integrity of the Nigerian Judiciary is at stake, and needs to be addressed. Furthermore, as a result of the abuse of freedom of expression, the world in which we are living in today has changed, so much so that, if people do not come out to defend themselves, whatever is circulated, whether true or false, will simply be taken as true.
Conclusion
The GHL/FBN case appears to be a golden opportunity for the Judiciary and the legal profession as a whole, to start 2025 by coming together to implement what should be topmost on the Reformatory Agenda, that is, zero tolerance for abuse of court process, corruption and nonsense. This is the only way in which the belief in the Nigerian Judiciary as the last hope of the common man, can be restored. We have spoken and written extensively on what needs to be done; there’s no better time than the beginning of a new year like this, for action to commence. It is important for there to be synergy between the National Judicial Council and the LPDC/LPPC, for this clean up exercise to be effective and successful.
