Malam Tanko D. Usman V. Samuel Baba (2004)

LawGlobal-Hub Lead Judgment Report

JEGA, J.C.A.

The appellant as plaintiff instituted this action at the High Court of Kaduna State, Kafanchan Judicial Division on the 13/2/95 in suit No. KDH/KAF/5/95 asking for declaration of title over a plot of land measuring 100ft x 100ft, situated on the Kachia – Kaduna public highway bounded to the west by Camp Road, Sabon Gari Kachia, bounded to the east by a plot occupied and used by ECWA Health Clinic, Kachia and bounded to the North by plot No.1 Camp Road, Sabon Gari Kachia covered by certificate of occupancy No.KCH/A/000289 issued on 17/02/86 by Kachia Local Government of Kaduna State for both residential and commercial purposes. The appellant also asked for an injunction, special and general damages.

The respondent through his counsel filed a memorandum of conditional appearance on the 17/2/95 and subsequently filed a motion dated 15/8/95 praying the court to strike out the suit for want of jurisdiction as the same matter had been adjudicated upon and is a subject of a pending appeal before this court, and was the subject of two other suits filed before the same High Court between same parties. The motion was supported by an affidavit and exhibits showing that four different suits had been filed and pending before the Court of Appeal, Kaduna and the High Court involving same parties and over the same subject matter. The appellant did not file a counter-affidavit challenging the depositions in the affidavit in support of the respondent’s motion. On the 20/3/96, the appellant’s motion to file his statement of claim was heard and granted and his attached statement of claim was deemed filed and served. Thereafter, on the same date, the court proceeded to hear the respondent’s motion raising the issue of lack of jurisdiction of the trial court to hear the suit. The appellant’s counsel did not object to the hearing of the motion but opposed same on points of law. The main ground on which the appellant opposed the motion was that the motion itself offended Order 23 of the High Court (Civil Procedure) Rules applicable in Kaduna State and which provision abolished demurrer. He conceded the subject matter in suit Nos. KDH/KAF/24/94 and KDH/KAF/64/93 were same or identical with the subject matter in suit No. KDH/KAF/5/95 which is the subject of this appeal but contended the parties were different. The trial court found that in the four suits filed on the subject matter the respondent was a party and both the present appellant and respondent are parties to the suit now pending on appeal to this Honourable Court. The lower court then ruled that the issue of jurisdiction was so important and fundamental that it should be determined timeously and at the earliest opportunity and need not to be raised in the statement of defence first before it is determined, the trial court, declined jurisdiction to proceed to hear and determine suit No. KDH/KAF/5/95 and struck-out same.

Dissatisfied with the said ruling of the trial High Court, the appellant appealed to this court as per the notice of appeal dated on the 17th day of July, 1996. We took this appeal on the 19th May, 2004 learned counsel to the appellant adopted and relied on his brief of argument filed on the 5th July, 2001 and also his reply brief deemed filed and served on 23rd January, 2003 and urged the court to allow the appeal. Learned counsel to the respondent adopted and relied on his brief of argument deemed filed on the 26th September, 2002 and urged us to dismiss the appeal. This appeal is based on four grounds of appeal and from the four grounds of appeal the appellant’s counsel distilled three issues for determination. The issues are as follows:

“1. Whether the trial court adopted the correct procedures in its consideration of the challenge of its jurisdiction?.

Whether the refusal of the plaintiff to file a counter-affidavit to refute the averments in the affidavit supporting the motion which challenged the trial court’s jurisdiction, left the said court with no option but to take the averments as true and admitted?.

Whether the trial court properly raised the issues of:

(a) disorganisation or change of the name or description of the subject matter in dispute;

(b) whether the disorganization or change was carried out successfully or not;

(c) the popular name by which the building has been known in other suits;

(d) the claims and parties in other suits;

(e) a chameleon, its characteristics, and effects;

(f) splitting a plot into many plots;

(g) a disputed hotel; and