Chief Emmab Umeh v. Mr Emmanuel Ikehi & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO, JCA (Delivering the leading judgment)

As a prelude to the instant appeal, it is important to state that the respondents in this appeal were claimants in suit No. M/784/2012, referred to as the initial suit, initiated on 28th August, 2012 in the High Court of Lagos State, which was presided by the Honourable Justice Harrison, J., hereinafter called, the lower court 1. The appellant herein was the main defendant in the suit together with others tagged ‘unknown persons”.

Meanwhile, at all material times, prior to the institution of the initial suit, the parties herein were business neighbours in the same Central Business District area of Lagos State; and as gleaned from the record before this court, they were all into property management and consultancy services.

It is observed that, while the appellant was a lessee of the property at No. 23/26, Nnamdi Azikwe Street, Lagos, the respondents, at the same time, were holders of a 5-year active lease on the property situate at No. 9, Nnamdi Azikwe Street, Lagos, the said lease was to expire in 2016. Parties, as a matter of fact, are ad idem that the two (2) named properties were contiguous to each other.

The problem was said to have arisen when the appellant reportedly constructed some number of stalls in the space adjoining the two buildings, which the respondents argued, forms part of the property on which they were holding an active 5-year lease. However, the appellant’s defence to the respondents’ case rests on the fact that the stalls were within the premises of the property on 23/26 Nnamdi Azikwe Street, Lagos, of his leasehold.

The lower court 1 delivered its decision in the initial suit and the same is the subject of appeal No. CA/L/934/2014, said to be pending before this court as at May, 2015 when the suit No: LD/503GCMW/2015 that birthed the instant appeal, was filed. The latter suit was commenced by a writ of summons, with the statement of claim and other relevant court processes, all dated and filed on 8th May, 2015, copied at pages 1-27 of the record of appeal, wherein the respondent, as the claimants in the High Court of Lagos State, claimed against the appellant, who was the defendant, the following reliefs:

1. The sum of N33,750,000.00 being the rents illegally collected by the defendant for the period of 3 years.
2. An order of perpetual injunction restraining the defendant from further collecting rents from No. 9 Nnamdi Azik we Street.
3. General damages in the sum of N300,000,000.00

When served with the aforesaid court processes, the appellant, as the defendant in the lower court, filed his statement of defence together with other relevant processes, all dated 15th October, 2015 and filed on 19th October, 2015, same were copied at pages 35 – 41 of the record of appeal.

The appellant, in addition to the said processes, also filed a notice of preliminary objection on 16th November, 2015, supported by an affidavit of 11 paragraphs deposed to by the appellant, seeking the dismissal of the suit on the grounds that;

i. The subject matter of this suit is also the subject matter of another suit between the same parties with suit No. M/784/2012. The claimants herein instituted the said suit.

ii. Suit No. M/874/2012 is still on at the Court of Appeal, Lagos Division with the appeal number: CA/L/932/14

iii. The instant suit No. LD/503GCMW/15 is therefore an abuse of judicial process.

iv. There must be an end to litigation.

On their part, the respondents, as the claimants/respondents in the lower court, filed an 18-paragraph counter-affidavit deposed to by Emmanuel Ikehi, the 1st respondent herein, in opposition to the preliminary objection. In addition to the bundle of documentary evidence filed for and against the preliminary objection, both parties filed written addresses in support of their respective positions. The lower court, Coram: Animahun, J., heard the application on Wednesday, 23rd March, 2016 and delivered its ruling thereon on 14th June, 2016, dismissing the appellants objection in its entirety.

Aggrieved with the decision of the lower court, the appellant approached this court in order to ventilate his grievances by lodging an appeal, vide a 6-ground notice of appeal dated and filed on 27th June, 2016, as can be found at pages 211 – 214 of the record of appeal. Following the compilation and transmission of the record of appeal, and in compliance with the provisions of the rules of this court, the parties in the appeal filed and exchanged their respective briefs of argument.