Aminu Chindo V. Samaila Isah (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment)

The Appellant as plaintiff, by a writ of summons dated and filed on 26th July, 2006, commenced Suit NO.KB/HC/21/06 at the Kebbi State High Court against the Respondent as Defendant seeking the following reliefs:-

“1. A declaration that plaintiffs is the owner and entitled to peaceful enjoyment and quiet possession of that piece and parcel of land situate near new market, Birnin Kebbi, which was boarded from the east by Aliyu Chindo and from the west by Shagari, from the North by Aw’walu and from the south by Nepa High Tension line.

2. A declaration that the defendant’s entry into the land in dispute which was boarded from the east by Aliyu Chindo and from the west by Shagari, from the North by Aw’walu and from the south by Nepa High Tension line situate near new market Birnin Kebbi constitute an act of trespass.
3. AN ORDER directing the defendant to vacate from the land by removing all the structures he illegally construct on the land.
4. AN ORDER of perpetual injunction restraining the Defendant by himself his privies and assigns from laying claim on the land in dispute.
5. N100,000.00 General damages for trespass.
6. Cost of this action.”

By a notice of preliminary objection dated 29/11/06, the Respondent challenged the competence of suit on the grounds:

“That Suit No.KB/HC/21/06 is an abuse of court process in that the subject matter and the parties are one and the same as in Suit No.SC/11/BK/CV/371/2006 dated 27/2/2006 before Sharia Court of Yaryara and motion for leave to appeal out of time, Motion NO.CA/K/223/M/02 and a subsequent motion i.e. CA/K/304/M/06 filed on 17th November, 2006 and this present case thus it robs this Hon. Court the powers/jurisdiction to hear/determine this matter.”

After a review of the addresses of counsel, the court below, in a considered ruling dated 8/3/07, upheld the objection against the suit and struck out same. The instant appeal is against the court’s decision vide Appellant’s notice dated and filed on the 4th May, 2007 containing three grounds.

Parties have filed and exchanged their briefs of argument. These briefs were, at the hearing of the appeal, adopted and relied upon.

The Appellant has distilled a lone issue from his three grounds of appeal for the determination of the appeal thus:

“1. Whether the trial High Court was right in deciding on the issue of substance of the parties grievance appropriate parties and the implication of the suit as it relates to the benefit at the preliminary stage and when no evidence is taken in the matter and when such issues constitute the substance of the parties case.”

The more appropriate issue formulated by the Respondent and on the basis of which the appeal will be determined reads:-

“2. Whether the lower court was right in holding that there was abuse of court process and in accordingly striking out the suit.”

Arguing the lone issue for the determination of the appeal, learned Counsel for the Appellant submits that the trial court’s finding that suit No.KB/HC/21/06 is an abuse of court process being in respect of the same subject matter and parties as in Suit No. SC/11/BK/CV/371/2006 before the Sharia Court Yanyara and the appeal in this court arising from motions Nos CA/K/223/M/06 and CA/K/304/M/06 is manifestly wrong. The Appellant by paragraphs 7 and 8 of his statement of claim had put in issue the identity of the land in respect of which he took out the writ in Suit No.KB/HC/21/06 against the Respondent. The affidavit in support of the preliminary objection on the other hand, argues learned Appellant counsel, contains no averment on the identity of the land in any of the three suits in contention. The identity of the land being litigated upon by parties is a necessary fact for the court’s determination of whether or not the abuse of its process has been occasioned. A determination by the court in the absence of the fact, it is contended, is perverse. The learned Counsel relies on Alex Oladele Elufioye v Ibrahim Halihu (1993) 7 SCNJ 347 AND Adesanya v Aderonmu 2 SCNOR 1180 at 1196.

Learned Appellant Counsel further contends that the issue of the identity of the parties in the various suits also remains unproved by the Respondent/objector. This fact is manifest in the court’s ruling at page 92 of the record of appeal. The court below, it is argued, embarked on speculation on the identity of parties in its determination whether or not the parties in the suits are the same. The issue of consequential benefit accruable to the parties which was never raised and canvassed by any of the parties could not form the basis of the court’s finding on the identity and sameness of the parties in the different suits. The processes available to the court and relevant in its determination of the identity of the parties in the various suits, Learned Appellant Counsel submits, are for the suit No.KB/HC/21/2006 to be found at pages 1 – 4 and 9 – 11; suit No. SCA/KBS/KB/131/2006 at pages 17-35 and 47-64; suit CA/K/223/SM/06 at pages 47 – 49 and suit USC/11/BK/F1/39/05 at pages 65 – 75. These do not support the court’s finding that consequential benefit accruable to the Appellant makes him a party in the other suits such that the instant suit constitutes an abuse of its process. The facts available clearly indicate that the parties in the other suits are different from those in suit No.KB/HC/21/2006. Relying on Kanumbu v Bunu (2006) all FWLR (Pt.300) 1734, Ugheneyovwe v State (2004) 12 NWLR (Pt.888) 626, Agbi v Ogbeh (2006) All FWLR (Pt 329) 988, learned counsel submits that speculation which the lower court resorted to in determining the identity of the parties can never take the place of the hard facts the court must base such crucial finding on. Further citing African Recorp v. Jop Const. (Nig) Ltd (2003) 13 NWLR (Pt 838) 609 at 635 and Agwasim v Ojichie (2004) 10 NWLR (Pt 882) 612 at 624, learned Appellant counsel submits that only a determination by the lower court of the sameness of parties and subject matter in the earlier suits as well as those in the subsequent suits will entitle the court to rightly find Appellant’s suit an abuse of its process.

Concluding, learned Appellant counsel argues that at the interlocutory stage the court below determined the preliminary objection, it lacked the necessary materials to take the decision. Nothing short of a full trial could, learned counsel contends, enable the court arrive at the correct decision. He urges that we resolve the issue in Appellant’s favour, allow the appeal and set aside the decision of the court below.