Zenith Bank V. Johnson A. Akinniyi (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of the High Court of Ondo State holden at Akure delivered on 6th October 2013.

At the lower Court, the Appellant who is the defendant applied for an order dismissing suit No: AK/105/2013 before that Court on the ground that it constitutes abuse of Court process because the subject-matter and the parties are the same with the subject-matter of suit No:AK/350/20/2 pending in the same Court.

Paragraphs 4 a-e of the affidavit in support of the motion on notice reproduced immediately hereunder read as follows:

a. Apart from this present suit, the Claimant had earlier instituted suit No.AK/350/2012 against the Defendant.

b. The said suit No.AK/350/2012 is still pending at the High Court of Justice Akure.

c. The subject matter and parties in the said suit No.AK/350/2012 and that of this suit are the same.

d. The issues to be determined in both suits are the same.

e. Copies of the enrolled order and the Writ of Summons in the said suit No.AK/350/2012 are herewith exhibited and marked A and B respectively.

Paragraphs 9-12 of the Counter affidavit reproduced immediately hereunder read as follows:

– That it was at the Registry of this Honorable Court that new Suit No.AK/105/2013 was given to the claimant/respondent instead of the suit No.AK/350/2012 contained on the Enrolment of Order on the ground that AK/350/2012 was a motion number.

– That the above stated fact in paragraph 9 predicated the alteration of the Suit No.AK/350/2012 to AK/105/2013 on the claimant processes served on the defendant/applicant, which is pending before this Honourable Court. The writ of summons dated 17th June, 2013 and filed same day is hereby attached as Exhibit 3.

– That the said order of court was served on the defendant alongside with other court processes by the bailiff of the Lagos State High Court. The affidavit of service is hereby attached as Exhibit 4.

– That Idowu Isaac Bewaji counsel to the claimant/respondent informed me in the chambers on 29th October, 2013 at 4pm and I verily believe him that:-