Disputed Debt: Court Bars Company From Forum Shopping, Slammed Defendant, Counsel With N2m Fine Each

A Lagos State High Court presided over by Justice Olalekan A. Oresanya has granted an Order restraining Cocean Nigeria Integrated Limited from commencing, prosecuting or otherwise participating in proceedings against P. E. Bitumen Resources Nigeria Limited in any court or tribunal other than the arbitration under the International Chambers of Commerce (ICC Rules) in respect of any dispute arising out of the Transportation Agreement the Claimant and the Defendant entered into on 13th May, 2019.

Justice Oresanya also awarded a cost of N2,000,000.00 (Two Million Naira) against the defendant in favour of the Claimant over forum shopping and abuse of court process.

The judge also awarded a personal cost of N2,000,000.00 (Two Million Naira) against the defendant’s Lead Counsel S. D. Ndukwe Esq. to be paid into the Coffers of the Lagos High Court for the gross abuse of court process perpetrated by the defendant through his counsel who owes a primary duty to the court as a minister in the temple of Justice to uphold the sanctity of the court process.

Justice Oresanya in his ruling said there must be an end to frivolous litigation and there must be respect for the sanctity of the court process, if not, public confidence in the legal and judicial process will be seriously eroded.

The trial judge made the order while delivering judgement in the suit filed by P. E. Bitumen Resources Nigeria Limited asking the Lagos State High Court to restrain Cocean Nigeria Integrated Limited from continuing, prosecuting or taking any further steps in the multiplicity of suits filed by the defendant.

The claimant, P. E. Bitumen Resources Nigeria Limited has approached the Lagos High Court asking for an order restraining the defendant from continuing, prosecuting, taking any further steps in enforcing, appealing or otherwise participating in any proceedings filed by the defendant itself in courts including two proceedings filed at the Federal High Court, Port Harcourt Judicial Division in Suit No FITC/PH/FHR/318/2023 and Suit No. FHC/PH/CS/180/2023 and the appeals arising from Suits Number HOW/679/2022 and Suit No HOW/374/2023 both filed at the Imo State High Court, Owerri.

The claimant also sought for an order restraining the Defendant from commencing prosecuting, continuing taking any steps in, enforcing, appealing or otherwise participating in proceedings against the Claimant in any court or tribunal, wherever situated, other than the arbitration under the International Chambers of Commerce (ICC) Rules, in respect of any dispute arising out of or in connection with the Transportation Agreement between the Claimant and the Defendant entered on 13th May, 2019.

The crux of the dispute arose from a transportation business agreement which has an arbitration clause.

The Applicant in its affidavit averred that Clause 24 of the Transportation Agreement between the parties provides that “All disputes arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination shall be referred to and finally determined by arbitration under the ICC rules which Rules are deemed to be incorporated by reference to this clause.

According to the arbitration clause “The number of arbitrators shall be three. The seat of the arbitration shall be Lagos, Nigeria. The language of the arbitration shall be English.”

Claimant averred that notwithstanding the agreement to arbitrate, the defendant commenced suit No. HOW/679/2022 at the High Court of Imo State, Owerri Judicial Division on 19th July, 2022 seeking to recover an alleged indebtedness from the claimant. The Defendant also obtained ex-parte injunction freezing the bank account of the Claimant.

The plaintiff said upon his becoming aware of Suit No. HOW/679/2022, he (claimant) commenced arbitration proceedings against the defendant under the ICC rules (Case Number 27171/AB and (ii) filed an action before the court for an order staying proceedings and referring the parties to arbitration.

The applicant added that the defendant participated in the ICC arbitration proceedings and signed Terms of Reference on the 17th of November, 2022 adding that while Suit No. HOW/679/2022 and the ICC arbitration proceedings were pending, the defendant commenced suit No. HOW/374/2023 at the High Court of Imo State, Owerri Judicial Division against the Claimant and members of the arbitral tribunal.

In the suit filed by the defendant at the Owerri High Court, the defendant sought amongst other things, an order restraining the arbitral tribunal from continuing with the arbitration proceedings, but the said suit No HOW/374/2023 was struck out by the court on 18th July, 2023 on the ground that the court had no Jurisdiction to entertain the suit and awarded cost of N50,000.00 against the defendant.

Suit No HOW/679/2022 was also struck out by the court in the ruling of the court delivered on 22nd November, 2023 where the court held that no cause of action accrues to either party if there is a disagreement between the parties until there is a recourse to the arbitration clause in the Transportation Agreement.

Not withstanding the striking out of the suits by the Owerri High Court, the defendant on 25th September, 2023, commenced a fundamental rights enforcement suit at the Federal High Court, Port Harcourt Division in Suit No. FHC/PH/FHR/315/2023 against the Claimant, the arbitral tribunal and the administrative secretary of the arbitral tribunal seeking to nullity the entire arbitral proceedings.

On 20th November, 2023, the Defendant commenced another Suit No. FHC/PH/CS/180/2023 at the Federal High Court, Port-Harcourt Division, against the Claimant, the arbitral tribunal the administrative Secretary of the arbitral tribunal and the International Chamber of Commerce (ICC) seeking orders preventing the arbitral tribunal from continuing the arbitral proceedings.

The Claimant averred further that by a Notice of Appeal filed on 20th July, 2023, the Defendant lodged an appeal against the decision of the High Court of Imo State in Suit No. HOW/374/2023.

The facts of the case were stated in the affidavit filed by the claimant with exhibits and written address attached to same.

The defendant, however, did not file any counter affidavit but only file a written address to the claimant’s originating motion.

On perusing the submissions and documents submitted by counsel to parties, Justice Oresanya in his judgement said “I must state that address of Counsel no matter how brilliantly made cannot metamorphose into evidence.

“The Defendant did not file any counter affidavit to the averments in the supporting affidavit filed by the Claimant/Applicant. It is settled law that averments in the affidavit of a party which are neither challenged nor controverted are deemed admitted and established and a court is bound to act on it unless they are obviously false to the knowledge of the court.”

“The Defendant/Respondent filed a written address in opposition to the originating motion filed by the Claimant/Applicant. I must state that address of Counsel nor matter how brilliantly made cannot metamorphose into evidence.”

The defendant in his written address contended that it is the arbitral tribunal and not the Lagos High Court that is vested with the power to make the order under section 2(3)(b) of the Lagos State Arbitration Law 2009 and that an agreement to arbitrate in the event of a dispute does not oust the jurisdiction of the court and that the arbitration in the parties’ agreement is different from a SCOTT V AVERAY Clause as it does not expressly, directly and unequivocally defer any dispute first to arbitration before litigation is commenced.

The defendant further argued that the Lagos High Court lacked the Jurisdiction to make any interim, supplementary, or preservatry orders in respect of Suit No FHC/PH/FHR/318/2023, Suit No. FHC/PH/CS/180/2023 and the appeal against the decision in Suit No. HOW/374/2023.

Cocean Nigeria Integrated Limited added that the claimant should have filed for an order of stay of proceedings in the courts where those actions are pending and that the instant suit constitutes an abuse of Court process.

Counsel to the defendant submits further that having regard to the nature of the reliefs sought by the Claimant in the instant case, the Claimant is seeking to curtail the constitutionally guaranteed right of access to court of the defendant as enshrined in Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria and that the allegations in the supporting affidavit of the claimant does not disclose a reasonable cause of action.

While evaluating the submissions of both counsel, Justice Oresanya said that upon a careful evaluation of the affidavit of the applicant, which is uncontroverted and unchallenged by any affidavit evidence, this court is of the firm and well considered view that the reliefs/orders sought by the Claimant/Applicant is within the threshold of the principles for the exercise of this court’s discretionary power in the Claimant’s favour.

The trial judge held that claimant is seeking the order of the court for an anti-suit injunction against the claimant.

“An anti-suit injunction is an order forbidding a defendant in a law suit from filing a similar action against the same party in another jurisdiction. The purpose of an anti-suit injunction is to prevent forum shopping.” He said

According to the judge,the balance of convenience and the dictate of justice is in favour of the grant of the anti-suit injunction being sought by the claimant. There is an arbitration Clause in the Transportation Agreement between the parties and the parties have commenced the arbitration proceedings in accordance with the Chambers of Commerce Rules in Lagos before the defendant instituted two separate suit at the High Court of Imo State and two other suits at the Federal High Court, Port-Harcourt Division; parties are bound by the arbitration clause in the Transportation Agreement and the court must give regard to the voluntary contract of the parties by enforcing the arbitration clause as agreed by them and parties to an agreement who had elected to refer their disputes to arbitration must be taken to have trusted their fate for good or bad in the discretion of the arbitrators in so far as the arbitrators act in accordance with the agreement,

Justice Oresanya held that the argument of counsel to the defendant that the arbitration clause in the agreement of the parties is different from a SCOTT V Averay Clause is seriously misconceived and the submission therein is highly misplaced.
” The argument of the Learned Counsel is simplistic, artificial and pedestrian and it is of no moment and I so hold. ”

He said that the defendant did not deny filing two separate suits at the High Court of Imo State and two other suits at the Federal High Court, Port-Harcourt Division in total disregard to the arbitration proceeding being held in Lagos in line with the arbitration clause in the Agreement of the parties without fully exhausting the arbitration proceedings, this to my mind, is nothing short of an abuse of court process. It is rather strange and startling to see the defendant’s counsel argued that the instant application is an abuse of court process when the defendant and its counsel are the ones who have actually abused the court’s process by the various suits it filed at different courts without exhausting the arbitration process voluntarily agreed by the parties.

I must state that an abuse of court process is not in the specie of sins called irregularity, it is a much more fundamental vice which is viewed seriously by the court. A court of law which is as well a court of justice will always prevent the improper use of its machinery and will not allow it to be used as a vehicle or means of vexatious, irritating and oppressive behavior in the process of litigation.

The abuse of court process perpetuated by the defendant under the guise of exercising its constitutional right of access to the court is tantamount to perversion of justice and one capable of making a mockery of the Judicial process, it is condemnable and should not be encouraged. The right of access to court allowed by law does not include the right to abuse the court process as it has been brazenly done by the defendant in the instant suit.

I must add that contrary to the argument and submission of counsel to the defendant, the instant suit is not a call or invitation to this court to make any interim or supplementary orders in respect of suit No. FHC/PH/FHR/318/2023, Suit No. FHC/PH/CS/180/2023, HOW/1271/2023 and appeal against the decision in Suit No. HOW/374/2023, rather it is a call on this court for an order to restrain the defendant from taking legal steps outside of the arbitration proceedings pending between the parties in Lagos and to prevent a further abuse of the court process by the defendant.

The court held that It is not in doubt that Lawyers are engaged to expouse the case of their clients. It is a monopoly and they should bear in mind that like all monopolies, their conduct is subject to strict rules of accountability for adherence to set ethical standards. They can fight the cause of their clients, but as lawyers they must act within the Rules. They owe a duty to their client but they owe a higher duty to a higher cause, the cause of Justice

Lawyers who misuse their knowledge of the law and legal procedure to stultify the process of administration of Justice constitute a clog to the progress of the legal process, Oresanya said.

Based on the foregoing evaluation, I find merit in the Claimant/Applicant’s Originating Motion, the application succeeds, I hereby make the following orders:

1. An Order is hereby made restraining the Defendant from commencing, prosecuting, continuing, taking any steps in, enforcing, appealing, or otherwise participating in proceedings against the Claimant in any court or tribunal, wherever situated, other than the arbitration under the International Chambers of Commerce (ICC Rules) in respect of any dispute arising out of or in connection with the Transportation Agreement the Claimant and the Defendant entered into on 13th May, 2019.

2. Cost of N2,000,000.00 (Two Million Naira) is awarded against the Defendant/Respondent in favour of the Claimant/Applicant and personal cost of N2,000,000.00 (Two Million Naira) is awarded against the defendant’s Lead Counsel on record S. D. Ndukwe Esq. to be paid into the Coffers of the Lagos High Court for the gross abuse of court process perpetrated by the defendant through his counsel who owes a primary duty to the court as a minister in the temple of justice to uphold the danctity of the court process.

There must be an end to frivolous litigation and there must be respect for the sanctity of the court process, if not, public confidence in the legal and Judicial process will be seriously eroded.