International Merchant Bank Plc & Anor V. Samba Petroleum Company Limited (2000)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A.

This is an appeal from the judgment of the High Court of Justice of Niger State delivered by the Suleja Division in Suit No. NSHS/SD/IM/2M & 34/93 on 18th February, 1994.

The 1st appellant is a Commercial Bank while the 2nd appellant is a Licensed Auctioneer engaged by the 1st appellant for the purpose of carrying out the sale by public auction of the plot of land and filling station of the respondent (a customer of the 1st appellant) situate along Kaduna – Lokoja Road, Suleja in Niger State.

The proceedings in the Niger State High Court (herein referred to as the lower court) which eventually led to the judgment the subject matter of this appeal commenced with a motion – Ex-parte by the respondent filed before the lower court on 22nd February, 1993.

The application which was supported by an affidavit sought the order of the lower court halting the advertised sale of the petrol filling station of the respondent billed for 10.30 a.m. on 22nd February, 1993.

The lower court made the order sought for on that day and adjourned the motion on notice to 3rd March, 1993 for hearing. Copies of the Order ex-parte were served on both 1st and 2nd appellants on the same day.

On 15th November, 1993, respondent filed an application in the lower court (p.162 of the Records) in the following terms:-

“Praying for the determination of the following issues:-

Whether the advertisement for sale by Public auction of the applicant’s property located at No. 12, Kaduna – Lokoja Road, Suleja in the New Nigerian Newspaper of 19th February, 1993 and the purported sale of the property on 22/2/93 to one Alhaji Danjuma are valid or void in law.”

Arguments were advanced by Counsel on both sides in respect of the application.

In a considered ruling delivered on 18th February, 1994, the learned trial Judge determined the issues as follows:-

(i) As the requirement of S. 19 of The Auctioneers Law, Cap. 10 Laws of Northern Nigeria, 1963 for seven days notice between the publication of the Notice of sale and a sale by auction relating to land was not complied with, the advertisement of 19th February, 1993 for the sale by public auction of the applicant’s property is void;

(ii) There was in fact no sale of the property of the applicant;

(iii) The purported sale of the applicant’s property while two suits concerning the same subject matter were still pending in the High Court of Kaduna State was contrary to the doctrine of “lis pendens” and so void.

This appeal is against that ruling.

The appellants filed in the High Court of Niger State six grounds of appeal and, with leave of this court, three additional grounds of appeal were filed. Two of the additional grounds, grounds 7 and 9 together with their particulars, they submitted, relate to new points of law which were not raised in the lower Court. In the appellants’ brief of arguments, the appellants formulated two issues for determination in this appeal. The two issues were based on the three new grounds of appeal Nos. 7, 8 and 9 thus abandoning the six original grounds of appeal.

The respondent has, in the respondent’s brief urged this court to strike out grounds 1,2,3,4,5 and 6 of the original grounds of appeal on account of their having been abandoned by the appellant There is no opposition by the appellants. Accordingly, the six original grounds of appeal filed by the appellants in the lower court on 9th March 1994, are hereby struck out.

For reasons which will become obvious in this judgment I shall quote grounds 7, 8 and 9 of the notice of appeal together with their respective particulars. They are-

“Ground Seven

The learned trial judge erred in law when he heard and granted the respondent’s application dated November 15, 1993 in the manner in which he did, by basing his decision on order 35 of the Niger State High Court (Civil Procedure) Rules 1987.

Particulars of Error

(i) The trial Court neither ascertained and determined what were the material questions in controversy between the parties nor reduced any question into writing and settled them in form of issues.

(ii) The trial Court did not give any direction to the parties to prepare any issue for it to settle.

(iii) The trial Court did not give any direction as to the manner in which the question or issue arising in the suit before it shall be stated.

(iv) The decision of the lower Court on the motion determined the substance of the main suit.

(v) The parties did not join any issue or raise any question in their pleading relating to the validity or otherwise of the sale of the respondent’s property.

Ground Eight

The learned trial Judge erred in law when it held that the advertisement for the sale of the respondent’s property by public auction was void.

Particulars of Error

(i) In reaching its decision, the lower Court relied on the Auctioneer’s Law, Cap. 10 Laws of Northern Nigeria 1963 as adopted by Niger State.

(ii) Suleja, the town where the property in dispute is situated, is not included in the schedule to the auctioneers (Application) Order in Council made pursuant to section 1 of the Auctioneers Law.

Ground Nine

The learned trial judge erred in law when, in holding that the sale of the respondent’s property was void, he applied the doctrine of lis pendens.

Particulars of Error

(i) In the suit before the lower Court, the respondent did not seek any relief in regard to the validity or otherwise of the sale of his property.

(ii) At the time the respondent filed its suit before the lower Court, there was no other suit pending before any other court in regard to the respondent’s property.

(iii) The suit pending before the High Court of Justice of Kaduna State was in regard to the recovery of the debt owed to the appellant by the respondent.

(iv) The respondent’s counter claim (which raised the issue of the respondent’s property) in the suit before the High Court of Justice of Kaduna State was filed during the pendency of the suit before the High Court of Justice of Niger State.

(v) The original suit instituted by the respondent against the appellant (Suit No. KDH/KAD/314/91- which was later consolidated with Suit No. KDH/KAD/301/92 between the same parties) was in regard to the mortgage debenture covering the respondent’s property in Zonkwa, Kaduna State.”

The two issues formulated by the appellants for determination in this appeal are;-

“1. Was it right for the trial Court to hear and grant the respondent’s application dated November 15, 1993?

2. Was it right for the trial court to apply the Auctioneers Law and the doctrine of lis pendens in arriving at its decision?”

The respondent in his brief adopted the two issues as formulated by appellants.

At the oral hearing before this court, the counsel for appellants and respondent adopted their respective briefs and made brief expatiations thereon.

On Issue 1, as to whether it was right for the lower Court to hear and grant the application of respondent dated 11th November, 1993, the appellants, as it were, merely expanded in their brief, the particulars indicated in respect of ground 7 thus:-

“It is a precondition for the exercise of the discretion given by Order 35 rule 5 of the High Court of Niger State (Civil Procedure) Rules 1987 that the lower court should have observed in proper sequence, the following:-

(a) a party must have applied to the court for settlement of issue or issues;

(b) the court must have ascertained and determined what were the material questions in controversy between the parties;

(c) the court may reduce the ascertained and determined questions into writing and settle them in form of issues; or

(d) the court may direct the parties to prepare the issues for it (the court) to settle.”

Appellants therefore contend that no issues were settled as required by O.35 rr. 1-4 nor directions given by the lower court as to the manner in which the question or issue shall be stated.

Appellants rely on Obijuru v. Ozims (1989) 2 NWLR (Pt.6) 167; (1985) NSCC Vol. 16 p. 430 at p. 436.

Appellants also submit that even if the lower court properly relied on O. 35, the issue to be tried under the order must be an issue which has arisen from the substantive action. They contend that in the suit before the lower court the parties joined issues only on the propriety or otherwise of the advertisement for sale of the property of the respondent and that the plaintiff/respondent did Rot in its statement of claim raise any complaint to seek any relief on the validity of the sale of its property and must be bound by its statement of claim.

It is therefore the contention of appellants that the lower Court should have confined itself to the issue concerning the advertisement for sale and not the sale of the property of the respondent Appellants rely on:

(i) Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (P. 13) P. 407, 419.

(ii) Odofin v. Agu (1992) 3 NWLR (pt229) P. 350.

Appellants also contend that the relief claimed in the interlocutory application is, as it relates to the validity or otherwise of the sale of the property of the respondent, not based on the substantive relief claimed in the writ of summons or the statement of claim. They therefore submit that respondent cannot claim under the guise of O.35 any relief in the interlocutory application which is not claimed in the substantive suit.

Appellants rely on Okoya v. Santilli (1991) 7 NWLR (pt206) p. 753, 765.

Respondent, as stated earlier, adopted the two issues formulated by the appellants. However, in the respondent’s brief both issues were treated together.

I shall however try in this judgment to isolate in respect of each issue, the respective arguments in the respondent’s brief applicable thereto.

On issue 1, respondent contends both in its brief and also orally before this court that the appellants have not appealed against the decision of the lower Court that there was no sale of the property of the respondent It therefore submits that the observation by the lower Court in respect of any purported sale of the property is void is mere obiter dictum. The brief however nevertheless goes on to advance arguments in support of that aspect of the judgment in the event of that part of the ruling being considered a decision.

It is the contention of the respondent that there is no provision in O. 35 rr. (1) and (2) or any of its rules which makes it mandatory for the trial Court to observe any ritual or preconditions in the sequence of settling issues or taking a decision on issues settled as the appellants would want this court to believe. It is the contention of respondent that the case of Obijuru v. Ozims should be limited to suits in which a court invokes the provisions of O. 35 r. (2) to order the parties to settle issues. Respondent contends that there was no such order of the court in this case.

Respondent also contends that rule (6) of the order which enables the court, if it appears to it, that the decision of any question or issue arising in the cause or matter…. substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may make such order or give such judgment therein as may be just is not subordinated to O.35 r. 1 or 2.

It is also the contention of respondent that appellants have not complained of a miscarriage of justice but of the non-observance of a procedural rule to which they acquiesced all along until after judgment was given in the mailer. Respondent therefore submits that it is now too late for appellants to complain on any irregularity in procedure.

Respondent relies on:-

(i) Order 2 rule 1 High Court of Niger State (Civil Procedure) Rules, 1987

(ii) Adepoju Ayallwale & 3 Ors v. Babalola Atanda & Anor. (1988) 1 NWLR (pt68) 22; (1987) All NLR 24 at p. 36.

As it is the main bone of contention on this issue, I shall set out below the provisions of Order 35 of the Civil Procedure Rules in full.

It reads:-

“I. At any time before or at the hearing, the court may, if it thinks fit, on the application of any party or of its own motion proceed to ascertain and determine what are the material questions in controversy between the parties, and may reduce those questions into writing and settle them in the form of issues which issues when settled may state questions of law on admitted facts or questions of disputed facts or questions partly of the one kind and partly of the other.

The court may, if it thinks fit, direct the parties to prepare the issues and the issues shall be settled by the court.

The issue may be settled without any previous notice at any stage of the proceedings, at which all the parties are actually present or at the hearing.

If otherwise, notice shall be given to the parties to attend the settlement of the issues.

At any time before the decision of the case, if it appears to the court necessary for the purpose of determining the real question or controversy between the parties, the court may amend the issues or frame additional issues on such terms as it seems fit.

1. The court may order any question or issue arising in a cause or matter, whether of fact or of law or partly of fact and partly of law and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter and may give directions as to the manner in which the question or issue shall be stated.
2. An order under this rule may be made on application by a party or by the court or a Judge in chambers on its or his own motion.
3. Application by any party for such order shall be by motion on notice stating the question or issue sought to be tried.
4. If it appears to the court, that the decision of any question or issues arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just.”

To my mind, if the court directs parties to a suit to prepare the issues for settlement as required by rule 2, it becomes mandatory for the court to settle the issues – Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167; (1985) NSCC Vol. 16 p. 430.

However in my view, a proper construction of rule 1 permits any of the parties to set down for determination, at any time before or at the hearing of a case, such issues as the party may consider are necessary for determination in the suit, just as the Judge, suo motu may direct the parties so to do. The issues so set down for determination, may then be tried before or after the cause or matter – Obijuru v. Ozims (supra) at p. 432, 436-7.

It is granted that in this case, it was the plaintiff who settled the issues for trial and determination by the Court. By motion on notice filed on 15th November, 1993, he moved the court for a trial of the same.

It is necessary for me to observe that this issue as to whether the lower court was right to hear and grant the application of respondent dated 15th November, 1993 is based on ground 7 in the additional grounds of appeal, for which appellants sought leave of this court by an application dated 25th January, 1996 to file and argue, on the ground that both grounds 7 and 9 relate to new points of law which were not canvassed before the lower court.

It is also necessary for me to point out that when the application under 0.35 for the determination of the issues set down by the plaintiff came up for arguments on 16th December, 1993 in the lower court, learned counsel for the appellant – i.e. defendant/respondent in the lower court (Mrs. Essien) among other strenuous grounds of objection to the hearing contended thus:-

The question whether or not on the face of it the purported sale is valid had been raised in the writ of summons; also, the question whether or not the advertisement for sale by public auction and the purported sale is void as well as the relief of injunction is covered by the writ in the action.

She therefore submitted that since both the writ and the interlocutory application would achieve the same end of nullifying or voiding the advertisement and the auction of the premises, the issue would be better joined in the substantive suit and not by way of interlocutory application.

She also contended that if the interlocutory application was heard and decided upon either way. it would amount to the court deciding a substantive issue on an interlocutory application which is not favoured by the courts as such decisions have the effect of disposing the main action before the court.

She therefore submitted that the application was irregular and should not be heard at that stage.

In response, Mr. Amaechi for the plaintiff/applicant referred to 0. 35 r. 5(1) – (3) as well as Rule 6 to found the application and contended inter alia, that the application, if it has the effect of putting an end to the suit as contended by respondent would save the court and the parties the rigour of litigation.

In its considered ruling given on the same day i.e. 16th December, 1993, the lower Court held that the cases relied upon by the Respondent were based upon the particular rules of procedure then applicable and distinguished between those earlier rules of procedure and the current O. 35 r. (5) and (6) of the 1987 rules of Civil Procedure. He therefore decided in favour of hearing and determining the application on notice.

There was no appeal by the respondents against that ruling as provided by Ss. 220 or 221 of the then applicable Constitution of the Federal Republic of Nigeria 1979.

It is my view that, in the absence of an appeal against the ruling of the lower Court given on 16th December, 1983 as to whether the lower court could properly hear the application as set out, it is now too late for the appellants to base an appeal on issue 1 as drafted simply because the subsequent ruling of the court on the substantive motion delivered on 25th January, 1994 had the effect of determining the substantive suit. Order 35 was fully discussed and argued by the parties in the interlocutory application.

In this connection, I agree with the respondent’s submission in its brief that at this stage, the application of 0.35 becomes a matter of procedure to which the appellant fully acquiesced and participated.

I hold that it is now too late for appellant to complain on the error (if any) on procedure. He had the opportunity to appeal against the interlocutory decision but failed to make use of it – See Adepoju Ayanwale & 3 Ors. v. Babalola Atanda & Anor (1987) All NLR 24 at p. 36; (1988) 1 NWLR (Pt.68) p. 22 at p. 23.

I am not able to see from the proceedings or the affidavit evidence in the suit any injustice which the appellants may be said to have suffered by the procedure in question.

All documentary evidence needed for arguments were produced by applicants. Learned counsel for respondents/appellants fully utilised them and confined himself to address on points of law.

In this case, the strenuous contention of the appellants on O.35 becomes a matter of mere technicality which this court will not permit to becloud the justice of the matter.

There is one other leg upon which the appellant hinged its argument on issue 1. It is in regard to its contention that parties in the suit only joined issues on the validity or otherwise- of the advertisement for the sale of the property of the respondent and that the plaintiff in its statement of claim did not raise any complaint or seek any relief on the validity or otherwise of the sale and that as such the reference in the application to a purported sale goes to no issue.

The respondent points out that by the combined effect of paragraph 10 of the statement of claim in which plaintiff raised the issue of sale and the 2nd relief in which he prayed for a perpetual injunction restraining the defendant… from advertising for sale by auction or selling by any other means or whichever way, the plaintiffs plot and filling station known as 12 Kaduna – Lokoja Road, Suleja coupled with para. 8 of the statement of defence of appellant, issues had been effectively joined on the sale.

Now paragraph 10 of the statement of claim reads:-

“In the meantime, the defendants on Friday the 19th of February, 1993 jointly published in the New Nigerian Newspaper of that day the sale of the plaintiffs plot and petrol station at No. 12 Kaduna – Lokoja Road, Suleja. The sale was slated for 10.30 a.m. on Monday the 22nd day of February 1993.”

While paragraph 8 of the statement of defence reads:-

“The defendants also plead that this action has been overtaken by events as the said premises was sold vide public auction to one Alhaji Rabiu Danjuma who paid the purchase price of N1.01million on the spot in the said premises at 10.30 a.m. on 22nd February, 1993, the day of the said auction.”

In the circumstance the following provisions of Rule 10 of Order 25 of the Niger State High Court (Civil Procedure) Rules becomes applicable:-

“10. – (1) If there is no reply to a defence, there is an implied joinder of issue on that defence.

(2) Subject to paragraph (3) of this Order-

(a) there is at the close of the pleadings an implied joinder or issue on the pleading last served; and

(b) a party may in his pleading expressly join issue on the next preceding pleading

3. There shall be no joinder of issue, implied or expressed, on a statement of claim or counter-claim.

(4) A joinder of issue shall operate as a denial of every material allegation of fact made in the pleading on which there is an implied or express joinder of issue unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted in which case, the express joinder of issue shall operate as a denial of every other such allegation.

In consequence, there is an implied joinder by the pleadings in respect of the averment in paragraph 8 of the statement of defence regarding the sale of the property of the plaintiff.

I therefore hold that the appellants are mistaken in their contention that the parties have not joined issues on the matter or that the plaintiff has not complained in the statement of claim nor claimed any relief regarding a purported sale of his property.

In the event I hold that in the circumstances, the lower Court was right in its decision to hear and grant the application of respondent dated 15th November, 1993.

I now come to Issue 2 in which appellant raises the issue of inapplicability of both the Auctioneers Law and the doctrine of “lis pendens” in arriving at the decision of the lower Court.

It is the argument of the appellants with regard to the issue of Auctioneers Law. Cap. 10 Laws of Northern Nigeria 1963 that in applying the provision of that Law, the lower Court relied on the Auctioneers (Application) Order in Council Vol. (IV) Laws of Northern Nigeria 1963 which provides, inter alia, in S. 2 that the law applies to areas set out in the schedule.

The schedule provides that the law applies to amongst others –

“The area of a township of a second class including any urban district administered by the local authority.”

It is the contention of appellants that the lower court was wrong to have held that Suleja which is headquarters of Suleja Local Government is an area of a township of the second class and is therefore covered by the Auctioneers Law.

It is the submission of appellants that the words in the Order in Council are to be given their normal and ordinary meaning and are not ambiguous. It is therefore contended that this court should hold that the court was merely making an assumption which it was not entitled to do under the ordinary cannons of interpretation and so should not have held that Suleja was a township of the second class or that the advertisement itself was void for non-compliance with S. 19 of the Auctioneers Law. In effect appellants contend that the Auctioneers Law, Cap 10 should not have been held applicable to the sale by Auction of property situate in Suleja.

For the respondent, it is contended that the lower court was quite correct when it held that Suleja, where the court is situate is judicially noticed as the headquarters of Suleja Local Government and falls within the urban district administered by the local authority and thus within the area to which the Auctioneers Law is applicable;

Also that the appellants are not disputing the fact that they did not give the required notice in the Newspaper advertisement.

The purpose of the Auctioneers Law Cap. 10, Laws of Northern Nigeria, 1963 as its title suggests is –

“To provide for the licensing of Auctioneers and to Regulate Sales by Auction.”

There is no doubt that circumstances relating to local government administration have changed since 21st July, 1917 the date of first commencement of the Auctioneers Law. No one now speaks of first or second class townships or urban districts as contained in the schedule to the Auctioneers (Application) Order in Council.

In such cases where new things which were not known and could not have been contemplated when the legislation was passed, the language of a statute is generally extended to such new things –

As an instance of this aspect of the rule of beneficial construction, the Engraving Copyright Act, 1734 which imposed a penalty for piratically engraving, by etching or otherwise, or “in any other manner” copying prints and engraving was held in Gambert v. Ball (1863) 32 LJCP 136: English Reports Vol. 143 at p.463; to apply to copying by photography though that process was not invented until more than a century after the Act was passed. Similarly, Edisons Telephone was held to be a “telegraph” within the meaning of the Telegraphs Acts 1863 and 1869, even though it was unknown in 1869 – Attorney-General v. Edison Telephone Co. of London Ltd. (1880) 6 Q.B.D. 244; Maxwell on The Interpretation of Statutes 12th Edition by P. St. J. Langan at page 102.

I consider that in the circumstance, the lower court was right to hold the Auctioneers Law applicable to Suleja in its present day circumstance as the headquarters of the Suleja Local Government Area.

Perhaps I should mention that the position of the appellant would even be less tolerable if the court were to hold as urged by the appellant that the Auctioneers Law is not applicable to Suleja.

As indicated earlier the object of the Auctioneers Law is to regulate Sales by Auction.

The Orders in Council stipulate the areas of the former Northern Region to which it is intended by S. 6 that the Law should apply.

Obviously, in any area to which the law does not apply it means that no one can be licensed td carry on a sale by auction in that area. Consequently, any auction by any licensed auctioneer of property in such an area would be illegal and void.

Now respondent is complaining only that the newspaper advertisement, the notice of sale did not give the seven days notice of the sale as required by the law which makes the law applicable in Suleja. If the contention of the appellant that the law does not apply to Suleja were the correct position of the law, respondent’s complaint would have been that the 2nd appellant had no legal authority to act as a licensed auctioneer in Suleja. A much worse situation for the appellants. Either way, there is no succour for the appellants in the circumstance of this case.

My interpretation of the Auctioneers Law, Cap. 10 of the Laws of Northern Nigeria 1963 is that the law is applicable to Suleja. However the appellants are in breach of S.19 of the Act when they gave only two days notice of the intended sale and as such the Notice of Sale was illegal. I therefore find no reason to disagree with the lower Court on that finding.

The second leg of complaint by the appellants in respect of issue 2 is that the lower Court is wrong to have held the doctrine of ‘lis pendens’ applicable in the circumstance of this case.

Appellants relying on the case of Ikeanyi v. A.C.B. Ltd. listed the conditions which would make the doctrine of ‘lis pendens’ apply in any particular case as follows:-

“1. There must be a pending action which is regarded as the Lis.

2. The lis must be in regard to real property.
3. The object of the action (or lis) must be to recover or assert title to the res which must be a specific real property.
4. The defendant who is the person who alienated the property or res in question must be aware of the pendency of the suit (or lis) … or is shown to be aware that the action was in full prosecution at the time of the sale. Once the above conditions are proved, the purchaser need not be aware of the pendency of the action in the entire sense stated above, at the time of the purchase.”

Appellants contend that in the case before the lower Court none of the conditions was present. They argue that the suit pending before the High Court of Justice in Kaduna State was in regard to the recovery of the debt owed to the 1st appellant by the respondent.

They contend that the respondent’s counter-claim in that suit was filed during the pendency of the suit before the lower Court and that the purpose of the respondent’s counter-claim was not to recover or assert title to property but to restrain the first appellant from exercising its right of sale as an unpaid mortgagee. One is bound to ask:-

Will such sale of such property if properly carried out under the rights possessed by the mortgagee not be capable of divesting the mortgagor of his title to the real property the subject of the mortgage?

The respondent contends that all the conditions stipulated in Ikeanyi v. A.C.B. (supra) are present in this case in that-

The property at Kaduna – Lokoja Road Suleja said to have been sold is the real property of the respondent; that the object of the suit filed by the respondent in Kaduna is to assert his title to the properties he used as security for the loans which he claimed he has not defaulted in repaying; the perpetual injunction prayed for by the respondent was to assert his title over the property and the appellants are aware of the pending actions.

I find in the Records of proceedings the following arguments by learned Counsel for the defendants/appellants when contesting the motion on the issues set down for determination on the ground that the suit on which the motion for determination of issues is an abuse of the process of the courts. At p. 51 of the Record, I find –

“It is humbly submitted that the very act of filing and arguing this application is in itself an abuse of judicial process.

The abuse of judicial process is defined by the Supreme Court in the case of Saraki v. Kotoye (1992) 9 NWLR (pt.264) p. 156 at p.188, paragraph f to h.

In paragraphs 8, 9,10 and 11 of the affidavit of C. Woke in support of the application, the fact of two existing suits pending at the High Court of Justice, Kaduna is setout. The said paragraphs particularly paragraph 8 also state that the said suits pending at Kaduna High Court are in respect of the applicant’s property.

The institution of the present substantive suit and the instant application subsequent and pursuant to the substantive suit qualify as one of the heads by which the abuse of judicial process is defined. By these very paragraphs 8 to 11 above, a multiplicity of action had been established.

This abuse of judicial process is further buttressed or aggravated by the very concurrency of jurisdiction of both this Honourable Court and high court of justice, Kaduna. It is our contention that this being the case, the applicant can and should seek and should have sought what ever relief or remedies she desires at the High Court of Justice, Kaduna since the suits therein which are earlier in time were still pending.”

In my view, the learned Counsel for the respondent was, on the basis of the above right when he said in his oral address before this court that the position of appellants in the lower court was that the subject matter was lis pendens.

I too hold that the property of the respondent in issue was lis pendens. I have already held in respect of Issue 2 herein that the advertisement for the sale of the property was illegal being in contravention of s. 19 of the Auctioneers Law Cap. 10 Laws of Northern Nigeria 1963.

Finally, having resolved the two issues formulated for determination in this appeal against the appellants I hold that there is no merit in the appeal.

Accordingly, I dismiss the appeal.

I award costs of N10,000 in favour of the respondent.

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Other Citations: (2000)LCN/0839(CA)