Alhaji Tiamiyu Eleburuike V. Alhaji Rahim Akano Tawa (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST J.C.A., (Delivering the Leading Judgment)

This appeal stems from the ruling of Honourable Justice Haliman Saleeman of the Kwara State High Court of Justice delivered on 3rd day July, 2009 striking out suit NO. KWS/148/2009 between Alhaji Tiamiyu Eleburuike, the appellant and Alhaji Akano Taiwo, the respondent on 18/1/2007. The appellant took out a writ of summons against the respondent. The claims in the writ of summons, are as follows.

1. A declaration that the claimant is the lawful owner of the piece or parcel of land situate directly opposite international Airport, Ogbomoso Road, Ilorin consisting of 356285 square metres covered by a certificate of occupancy NO KWS/0729.
2. A declaration that the entering unto the land by the defendant and his agent and making at cement blocks therein without the consent or authority of the claimant amount to trespass and is unlawful.
3. An order of perpetual injunction restraining the defendant by himself, agents, servants and privies from entering or doing anything whatsoever on the land that is adverse to the interest of the claimants.
4. N1,000,000. 00 Damages for trespass.

Thereafter the two parties filed and exchanged pleadings. The matter was thereafter slated for pre-trial conference. It was at the pre-trial conference that the defendant now respondent applied that the case be (treated as a special case under Order 34 at the Kwara State High Court Civil Procedure Rules, 2005. The learned trial judge struck out the suit on the ground that Certificate of Occupancy relied upon by the appellant is issue estoppel and that the matter is an abuse of court process.

Flowing from the above, the plaintiff now appellant filed a notice of appeal containing five grounds of appeal. Similarly, the appellant formulated three issues for determination as follows:

1. Whether the learned trial judge was right in striking out the claimant/appellants suit at preliminary stage of pre-trial conference without allowing the claimant/appellant to state his case.(grounds 1 & 2).
2. Whether the said judgment in suit NO. KWS/240/1997 which was subsequently affirmed by the court of appeal NO.CA/IL/38/2002 constitutes an issue estoppel before the learned trial judge, (grounds 3 & 4).
3. Whether the appellant’s suit before the lower court which culminated into this appeal constitutes an abuse of the court processes against case NO. KWS/240/1997 and Appeal NO. CA/IL/38/2002 and suit NO CVF/45/2006 relied upon by the learned trial judge. (Grounds 5 & 6).

The respondent on his own adopted the issues as formulated by the appellant with little modification. For ease of reference the issues are highlighted below.

1. whether the trial court was right when he held that the certificate of occupancy constitutes issue estoppels (grounds 3 & 4)
2. Whether the trial court was right when he held that the defendant is a privy in law to the defendant in the previous case as long as the issue relating to interest in land covered by the invalid certificate of occupancy is concerned, (grounds)
3. Whether the trial court was right when he held that the case before him constitutes an abuse of court process. (Grounds 1, 2 & 6).

The appellants vide his counsel adopted his appellant’s brief of argument and reply on point of law; praying this court to allow the appeal, while the respondents vide their counsel adopted the respondent brief of argument.

In determining this appeal, this court will appraise all the issues raised by parties where after all the issues will be determined. The issues as raised by the appellant’s will first be reviewed before that of the respondents.

APPELLANT’S ISSUE NO. 1

Whether the learned trial judge was right in striking out the claimant/appellants suit at the preliminary stage of pre-trial conference without allowing the claimant/appellant to state his case. (Grounds 1 & 2)

The Defendant/Respondent’s application before the lower court was premised on the provisions of Order 26! Rule 2 and Order 34 rule 1 of the Kwara State High Court (Civil Procedure) Rules 2005 praying the court for an order setting down for hearing of the special case raised by the Defendant/Respondent in paragraphs 7, 8 and 21 of his statement of defence.

The High Court Judge, in resolving the application in Respondent’s favour, held at pages 199, 200 and 210 of the record of proceedings that “This case is struck out”.

The Applicant’s counsel conceded, that based on a plethora of decided cases, a party can raise a point of law at the preliminary state of the case to challenge the jurisdiction of the court.

However, the situation in this present case is different, as the Appellant’s counsel submits that, the provision of the said Order 26 Rule 2 and Order 34(1) of the Kwara State High Court Civil Procedure Rule 2005 can not be read in isolation with the provision of other rules, particularly the provisions of Order 1 Rule 4(2) of the said Kwara State High Court Civil Procedure Rule 2005.

The Appellant’s counsel submits with greatest respect that the ruling of the trial judge in striking out the Appellant’s suit is in sharp contradiction of the above provision of the rules. The ruling of the trial judge would have been justified, supposing the Respondent was a party to the earlier proceeding in Suit No. KWS/240/1997, which eventually culminated into Appeal No. CA/IL/39/1997, therefore failure of .His Lordship to draw His attention to the foregoing, has led to a grave miscarriage of justice.