Zest News Limited V. Senator Mahmud Waziri (2003)

LawGlobal-Hub Lead Judgment Report

GEORGE ADESOLA OGUNTADE, J.C.A.

A

t the High Court of Abuja, the appellant was the plaintiff and the respondent was the defendant. The parties are hereinafter referred to by the same description they bore before the lower court. On 10th May, 2001, the plaintiff issued its writ of summons claiming from the defendant the following reliefs:

“1. A declaration that the plaintiff is the lawful allotee, owner or person with sufficient interest in the 3 bedroom flat known and addressed as house No.1,362 Road, FHA Estate Phase 111, Kubwa Abuja.

2. A perpetual injufnction restraining the defendant, his agent(s), servant(s), privy(ies) assigns(s) or anyone claiming through him or howsoever called from trespassing or howsoever interfering with the plaintiff’s possession (actual or constructive) or any other, from the enjoyment of the flat described in (1) above”.

On the same date it issued its writ of summons, the plaintiff filed an application on notice pursuant to Order 8 rule 7 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 1990 praying for the following:

“1. An order of interlocutory injunction restraining the defendant/respondent, his agent(s) servant(s), privy(ies) or any other person(s) however so called from trespassing, renovating, transferring alienating, mortgaging, changing, obstructing the possession thereof or interfering with the plaintiff’s light of peaceful enjoyment and possession of the 3-bedroom flat known and addressed as house No.1 along 362 Road, 3rd Avenue, Kubwa-Abuja pending the determination of the substantive suit.

2. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.”

In the usual manner, the plaintiff filed an affidavit in support of the application. The defendant later filed a memorandum of appearance to the writ. On 21st June, 2001, the defendant filed an application on notice praying for the following:

“1. An order striking out the name of the defendant/applicant from the writ of summons issued by the plaintiff/respondent herein on the 10th day of May, 2001 on the grounds:

1. that the writ and the accompanying motion on notice dated 10th day of May (sic) 2001 disclose no cause of action against the defendant/applicant.
2. that the writ is embarrassing, scandalous and vexatious.
3. that issuance of the writ is an abuse of the process of the court.
4. An ORDER that even if all the facts contained in the writ and motion on notice are admitted, they still do not DISCLOSE ANY CAUSE OF ACTION against the defendant/applicant herein.
5. And for such order or further orders as this Honourable Court may deem fit to make in the circumstance.”

The defendant filed an affidavit in support of the application.

The plaintiff on 31/7/2001 filed a counter-affidavit. The trial Judge, Kuti, J., heard the two applications, that is, the one by the plaintiff and the other by the defendant together. On 2/8/200 1, the lower court delivered one ruling which covered both applications. It dismissed the application by the plaintiff. In the application by the defendant, the lower court struck out the name of the defendant from the suit. It then made an order in these words:

“This court hereby orders the parties to go back to Lagos to the Federal High Court to continue with the case which happens to be the forum convenience in this matter. It is a matter under Company and Allied Matters.”

The plaintiff was dissatisfied with the two rulings of the lower court. It has brought this appeal against them. In the appellant’s brief filed, the issues for determination in the appeal were identified as the following:

“2.1. Whether the learned trial Judge was correct in striking out the name of the defendant/respondent off suit No. FCT/HV/CV/390/2001?

2.2. Whether the learned trial Judge was correct when he ordered that the parties should go to the Federal High Court, Lagos to continue with the case purportedly before that court?