Alhaji Oseni Olaniyi Tailor & Ors. V. Alhaji Shitu Balogun & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA J.C.A.: (Delivering the Leading Judgment)

This is an appeal against an interlocutory decision of the High court of Kwara State, Offa Judicial Division, in Suit No. KWS/OF/18/2010, delivered on 31/5/2011 whereof the learned trial judge, S. M. Akanbi J. dismissed the preliminary objection by the defendants (Appellants herein) and held that the Suit did not constitute an abuse of court process (page 530 of the Record).

The events that led to the Suit and to the application which culminated in the Ruling appealed against, paint a pathetic story of venue shopping to commence Court action, made worse by aggressive, moves to stall the suit.

The 1st and 2nd Respondents, as plaintiffs in the High Court had filed a writ of summons on 2/7/2010, seeking some reliefs relating to chieftaincy matter. Before taking out the writ in the High Court, the 1st Respondent had instituted an action at Upper Area Court, Ilorin, in 2008 (Suit No: UACII/CVF/58M/2008) against the Appellants (especially 1st Appellant), and an order of injunction was made on 15/9/2008 against 1st Appellant restraining him. The 1st Respondent also filed another Suit (UACII/CVF/60M/2008) in the same Upper Area Court on 22/9/2008 against 1st Appellant and 3 others over the same subject matter.

The Appellants (as defendants in the Upper Area Court) raised objection to the trial of the Suit by Ilorin Upper Area Court, upon which the suit was transferred to Upper Area Court, Offa, in Suit No.UACF/CVFI/2009. Appellants (particularly 1st Appellant) again filed an application challenging the jurisdiction of the Upper Area Court, Offa, on the basis that the claims bothered on chieftaincy matter which they said was outside the competence of Upper Area Court.

While the challenge to the jurisdiction of the Upper Area Court was still pending, the 1st Respondent (as plaintiff in the Upper Area Court) applied through his Counsel, on 19//2010, to the Director of Area Court, seeking transfer of the Suit to the High Court. Appellants again wrote a letter of objection to the Respondents’ letter, ground that there was a pending application challenging the jurisdiction Upper Area Court, which ought to be taken first and disposed of.

The Respondents then filed “NOTICE TO DISCONTINUE SUIT” in the Upper Area Court on 2/7/2010. Appellants again, filed an objection to the Notice to discontinue the Suit, on the ground that the pending challenge to the jurisdiction of the Upper Area Court ought to be taken first.

The Respondents then filed,their writ of summons in the High court on same 2/7/10, seeking the same reliefs sought in the Upper Area Court. Appellants further raised a preliminary objection to the writ of summons at the High Court. The objection, filed on 5/1/2011, challenged the jurisdiction of the High Court to entertain the Suit. (KWS/OF/18/2011) on the grounds that it was an abuse of the court process, in view of suit No.UACF/CVFI/2009.

The Ruling of the learned trial judge thereto brought about this appeal. He held that the Notice to discontinue the Suit had automatically terminated the case at the Upper Area Court. “‘Therefore I hold that this suit does not constitute an abuse of court process” (Pages 530 and 531 of the Records).

Appellants obtained the leave of the trial Court on 14/6/2011 to file this interlocutory appeal, and they filed Notice and grounds of Appeal on that date (14/6/2011) raising 3 grounds of Appeal, as shown on pages 549 to 553 of the Records. Appellants filed their Brief of arguments on 18/4/2012 and the same was deemed duly filed on 30/5/12. They distilled two (2) issues for determination. namely:

(1) Whether the learned trial judge was right in holding that “NOTICE TO DISCOUNTINUE SUIT” filed by the 1st Respondent automatically brings an end to the case before the Uppe Area Court, Offa (Ground 1)

(2) Whether, considering the suit pending before the Upper Area Court, Offa the learned trial judge was right in holding that the 1st and 2nd Respondents present suit before him does not constitute an abuse of the Court process.” (Ground 2 and 3).

The 1st and 2nd Respondent filed their Respondents’ Brief on 31/5/2012 and also distilled 2 issues for determination:

(1) Whether the learned trial Judge was right in his conclusion that the suit before him as constituted is not an abuse of Court process liable to be dismissed in limine. (Grounds 1 and 2).