Alhaji Isiyaku Yakubu Ent LTD V. MR Aliyu B. Tarfa & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A.: (Delivering the Leading Judgment)

This is an Appeal against the Ruling of the Adamawa State High Court of Justice sitting in Yola in Suit No. ADSY/49/2005 delivered on 2nd November, 2010. The Appellant had filed the action against the Defendants, and subsequently sought to discontinue same. In granting the application, the learned trial Judge made a consequential order barring the Appellant from re-instituting the action again.

The facts of the case can briefly be summarized as follows: The Plaintiff, via a Writ of Summons dated 26th August, 2005, commenced an action against the Defendants for trespass. The case was assigned to Nathan Musa, J. of the Adamawa State High Court of Justice.

The Appellant filed his Statement of Claim, and upon being served the Writ of Summons and Statement of Claim, the 1st Defendant entered an appearance and, with the leave of Court sought and obtained, filed his Statement of Defence out of time. However, the 2nd to 4th Defendants, even though duly served all the processes of Court, did not put in any appearance neither did they file any processes in response to the claim.

After pleadings had been duly filed and exchanged between the Plaintiff and the 1st Defendant, the Plaintiff opened its case with PW1 testifying and tendering nine (9) documents. Quite suddenly and before PW1 could be cross-examined, the suit was transferred to another High Court of concurrent jurisdiction presided over by Lagre, J.

Subsequently, an oral application to discontinue the suit, (which was pending for trial de novo), was made by learned Counsel for the Appellant before Lagre, J., who insisted that the Defendants be placed on notice. As a result, a Motion on Notice for leave to discontinue the action was filed and served on all the Defendants.

The Defendants, having been duly placed on notice in line with the direction of the learned trial Judge, did not file any counter affidavit contesting averments in the Applicant’s affidavit, which gave reasons for the discontinuance of the suit, nor did they oppose the motion on any point of law nor did they even appear in Court during the proceedings.

After giving consideration to the application, which was not contested, the learned Judge of the lower Court granted the prayer to discontinue the suit. He however made a further un-solicited order barring the Appellant from bringing the same action against the Defendants again. He found inter alia as follows at page 43 of the Record:

“This application therefore for leave of court to discontinue this action be and is hereby granted as prayed. The order striking out the case is refused. The defendants who were put on notice did not respond. They were not in court when this application was heard. Application for cost was made.

There will therefore be no order as to cost. This case having gone this far, it is hereby ordered that plaintiff is barred from bringing the same action against the defendants subsequently. All Exhibit tendered in this case are (sic) hereby ordered to be returned to the plaintiff.”

Not satisfied with the consequential order, the Appellant has appealed to this Court.

At the hearing of the Appeal on 28-04-14, learned Counsel for the Appellant, Mr. J. Olabode Makinde, appearing with Mr. M.J. Ifegwu, adopted the Amended Appellant’s Brief of Argument deemed duly filed on 11-03-14 as well as the Appellant’s Reply Brief filed on 14-04-14 in response to the 2nd Respondent’s Brief of Argument, and relied on the arguments contained therein as the arguments of the Appellant in this Appeal. Learned Counsel stated that he distilled one sole issue from Grounds 2, 3 and 4 of his Grounds of Appeal in the Amended Notice of Appeal deemed properly filed on 11-03-14; and he abandoned Ground one. He urged the Court to allow the Appeal.

On his part, Mr. Etim Akpan, learned Counsel for the 2nd Respondent, adopted the 2nd Respondent’s Brief of Argument filed on 04-04-14 and relied on the arguments therein contained as the 2nd Respondent’s arguments in the Appeal. He distilled two issues for determination from the four (4) Grounds of Appeal, and urged the Court to dismiss the Appeal in its entirety.

Upon a careful inspection of the issues distilled by the parties’ vis-‘a-vis the four (4) Grounds of Appeal, it is evident that the sole issue formulated by the Appellant and issue one distilled by the 2nd Respondent are virtually identical, but for minor differences in phraseology. Also, contrary to the submission of learned Counsel for the Appellant, it is evident that, from the Amended Appellant’s Brief of Argument, his sole issue for determination is expressly stated therein to have been distilled from Grounds 2 and 3 only.