Alh. Umaru Bako & Ors V. Yau Abubakar (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment):

The Appellants, (for themselves and on behalf of heirs of late Abdul Aziz Bako) instituted a legal proceeding against the Respondent before the Kaduna State High Court by a Writ of Summons dated the 10th January 2011. Then, by the Statement of Claim dated the 3rd January, 2011 the Appellants sought the following reliefs against the Respondent:

“1. A declaration that the Plaintiffs, being the heirs of late Abdulazeez Bako, are the ones entitle (sic) to the exclusive possession enjoyment and title to that marshy land situate at Shika village, Igabi Local Government of Kaduna State which shares boundaries thus: to the East is a stream; to the West is a River; to the South is River and to the North is farm land of Mallam Sule.

2. A perpetual injunction restraining the defendant, his agents, servants, privies or anyone claiming from or through him from entering or further entering the said farm land.
3. Sum of N250,000.00 being general damages for trespass or unlawful entry unto the said land without the Plaintiffs consent.”

Upon being served with the Writ of Summons, the Respondent filed a Notice of Preliminary Objection challenging the jurisdiction of the lower Court to entertain the suit on the ground that the matter is an abuse of Court process and for lack of jurisdiction. The said objection was supported by the facts averred in a nine paragraph affidavit deposed to by one Khadija Abdulrasheed, the Litigation Secretary in the Chambers of Idris Ibrahim & Co, Solicitor to the Respondent.

In their reaction, the Appellants filed a fourteen paragraph counter-affidavit sworn to by one Rahim Haruna, the Litigation Secretary in the Respondent’s counsel’s law firm.

The learned trial Judge considered the preliminary objection particularly the facts in support of the Respondent’s contention and the contrasting facts of the Plaintiffs, now the Appellants, in their counter-affidavit, and then expressed at pages 84-86 as follows:

“While the Objector says the marshy land has been shared as evidenced by Exhibit A, he annexed to the affidavit in support, the Respondents claim that the marshy land belongs to them and has never been shared. The Respondents are also contesting the Exhibit A calling it fake and obtained by fraud.

The said Exhibit A is a certified true copy of a writ of possession issued by the Upper Sharia Court II Zaria City sharing land between the Objector and Alhaji Abdu Ibrahim. If my understanding of the paragraph 12 of the Respondents deposition quoted above is right, then it seems to me that what the Respondents are saying is that the Exhibit is not genuine and that the said Abdu Ibrahim is not a joint heir with the Respondents. Firstly, it is my view that if that be the case, the Respondents ought then to have challenged that decision of Upper Shariah Court II by challenging the award/allocation of part of the land to Abdu Ibrahim since he is not an heir and further still furnish this Court with evidence from the Upper Sharia Court denying the said Exhibit A. I am certain that learned Counsel for the Respondents Mr. M. T. Mohammed is aware that such an allegation as made by them is not made in vaccum and that such must be proved to the standard required by law; it being criminal in nature. There is no such ingredients put before me as proof that a Court process, that on the face of it is certified as true, can be deemed by this Court to be otherwise.

The Respondents’ deposition that they are not aware of the marshy land having been shared does not per se and in my view then become proof that it was not in act shared more so, in the light of Exhibit A. I would say that it is deductible from the depositions of parties, that it is the same marshy land that was shared that is the subject matter of this suit. In the light of this therefore, and in the absence of proof of fraud as alleged, the said Exhibit A is and remains a valid, subsisting and binding order of Court same having not been appealed against, nor the order set aside.

In the light of my view as expressed above that the marshy land in issue is one and the same as in the Exhibit A, and in view of the subsistence of a suit before the High Court of Zaria filed by the Objector, albeit a civil claim in respect of damages caused to his crops planted on part of the land in issue; I do agree with learned Counsel for the Objector Mr. Attah G. A., that this suit is lacking in good faith and in my opinion rightly constitutes an abuse of court process as contemplated by law; see for instance, the case of Njokanma vs. Mowete (2002) FWLR Part 108 page 1536 at 2556 and Olutinrin vs. Azaika (1998) 6 NWLR Part 554 366 at 368 cited by learned Counsel for the Respondents and Applicant respectively.

On the whole therefore, I am of the opinion that the Objector’s application that this suit is an abuse of Court process has been established and thus the objection is sustained. In consequence therefore, this suit is accordingly struck out.”

The preliminary objection was sustained and the Appellants’ said suit was struck out. They filed an appeal against the said decision.

In this Court, the parties filed their respective Briefs of Argument. The Appellant formulated two issues in like manner;

“1. Whether Exhibit A or any other evidence is of any evidential value which the learned trial Judge could rely on so heavily to sustain the Respondent’s allegation.