Abdu Yunusa Indabawa V. Garba Magashi & Anor (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATA BDLIYA, J.C.A. 

 By a motion on notice dated 26th of February, 2015 and filed on the 2nd of March, 2015, the applicant prayed the Court for the following orders:
1. An Order of this Honourable Court granting extension of time to the Applicant within which to file an appeal against the decision of Kano State High Court in suit No. K/726/95 presided over by Honourable Justice Tani Yusuf Hassan delivered on 18th May, 2005;
2. An Order of this Honourable Court deeming the Notice of Appeal attached to the Affidavit in support hereof as ‘Exhibit MB12? as duly and properly filed and served;
3. An Order of interim injunction restraining the Respondents from changing the structures, disposing or in any way whatsoever alienating the interest in the properties subject matters of the High Court suit pending the determination of the appeal;
4. An Order of the Honourable Court directing the Respondents to maintain the status quo regarding the properties subject matters of the High Court suit pending the determination of the appeal;
?5. And for such further or other orders as the Honourable Court may deem

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fit to make in the circumstances of the case.

On pages 7 to 9 of the written address, learned counsel to the respondent, contended that the applicant is not claiming any personal interest in the sub-matter of litigation, that is, he is not the owner of the subject-matter of the dispute. Counsel referred to Paragraph 3(e) of the affidavit in support of the application to buttress his contention that the applicant has no interest in the outcome of the application, therefore, he cannot bring this application. Counsel cited the case of Adesanya V. The President, Federal Republic of Nigeria to buttress his contention that a person or party cannot present an action in Court of law, if he has no interest in the outcome of the litigation. Counsel also contended that the application filed by the applicant is an abuse of Court process having filed similar application before High Court and this Court at various times without prosecuting same to finality. Counsel did urge the Court to strike out the application since the applicant has no locus standing to institute same, and also being an abuse of Court process having filed similar application before the High Court,

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and this Court.

The contention of learned counsel that the application has no standing to file the application, and also that it is an abuse of Court process tantamount to raising a preliminary objection to the competency of the application. The law is trite, where a preliminary objection is raised in any suit, same is to be disposed off before proceeding to hear the substantive suit or application. For the primary purpose of raising a preliminary objection is to determine or terminate the proceedings in limine at the point the objection was raised. The Court has a duty to consider and determine the preliminary objection before proceeding to hear the suit or action. Okoi v. Ibiang (2002) 10 NWLR (Pt.776) 455; Ahaneku v. Ekoruo (2002) 1 NWLR (Pt. 748) 301.

On whether the applicant had the interest to file the application, counsel referred to Paragraph 3(e) of the affidavit in support and submitted the property belonged to the Emir of Kano, therefore the applicant had no interest in the property to institute any action. Counsel cited and relied on the case of Adesanya v. President, FRN, wherein it was held that a Court of law can only entertain

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an action where the interest of the person bringing the action has been shown or established. A recourse to the affidavit, the counter-affidavit and the further affidavit filed by the applicant and the respondent is imperative at this juncture. The depositions in Paragraphs 3(d),(g),(j),(k) and 7(g) and (h) are germane. In these paragraphs, it has been shown that the applicant has interest in the property, subject of the dispute at the trial Court. The law is trite, the interest of a party is determined by the pleadings or the affidavit relied on in bringing the action. Therefore, the question whether or not a person has locus standi is determinable from the totality of the averments in the statement of claim. The approach has always been for the Court to resolve the issue by scrutinizing the statement of claim or the affidavit alone with a view to ascertaining whether or not the claimant’s sufficient interest has been disclosed and how the interest has arisen in the subject matter of the action. Where the averments have disclosed the interest of the plaintiff and the interest is threatened with violation or actually violated by the act of the defendant, the

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plaintiff would be adjudged by the Court to have manifested sufficient interest to entitle him to litigate over the subject matter.

Exhibit MBI attached to the application of the applicant shows that the parties to the suit No. K/267/1995 before the High Court of Kano State was between Garba Magashi & Ors v, Abdu Yusha’u Indabawa, the applicant. The respondent has not shown or established the applicant was not the defendant at the trial Court, that is Kano State High Court of Justice. In view of the foregoing, I hold that the applicant, Abdu Youshua Indabawa, has sufficient interest in bringing the application.