AMINU CHINDO v. SAMAILA ISAH
(2010)LCN/3684(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of April, 2010
CA/S/91/2009
RATIO
PROCEDURE: ABUSE OF COURT PROCESS; MEANING AND NATURE OF ABUSE OF JUDICIAL PROCESS
“The Supreme Court in the case of Agwasim v. Ojichie (2004) 10 NWLR (pt 882) 613 at 622-623
defined abuse of judicial process thus:-
The abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways such as:
- Instituting a Multiplicity of actions on the same subject matter against the same apparent of the same issue: or
- Instituting a multiplicity of actions on the same matter between same parties, or
- Instituting different actions between the same parties simultaneously in different courts even though on different grounds; or
- Where two similar process are used in respect of the exercise of the same right such as a cross appeal and a respondents notice. PER MUSA DATTIJO MUHAMMAD, J.C.A.
EVIDENCE: WHO BEARS THE BURDEN OF PROOF
In law, it remains the principle, see 136 of the Evidence Act, that whoever asserts must bear the burden of proof. See also Olufosoye v. Fakodele (1993) 1 NWLR (Pt.272) 747 CA, Cop v. Ogunlayo (1993) 6 NWLR (pt.299) 259. Anyanwu v. Mbara (1992) 5 NWLR (Pt 242) 386 SC and Adaoke v Adibi (1992)NWLR (Pt 242) 410 sc- PER MUSA DATTIJO MUHAMMAD, J.C.A.
EVIDENCE: IMPLICATION OF WHAT IS NOT DENIED
What has not been denied is deemed admitted. See Nwokoro v Onuma (1999) 12 Okomu Oil Palm Co. Ltd v Iserhienshen (1996) 5 NWLR (Pt 448) 304. PER MUSA DATTIJO MUHAMMAD, J.C.A.
PROCEDURE: COMPONENT OF ABUSE OF COURT PROCESS
It is also a necessary part of the same principle that parties in a latter suit must be the same as in the earlier suit for the latter suit to be adjudged an abuse of the process of the court. See Saraki v Kotoye (1992) 9 NWLR (Pt 264) 156. Arubu v Aiyeleru (1993) 3 NWLR (Pt.280) 126 and Owonikoko v Arowo (1997) 10 NWLR (Pt 523) 61. PER MUSA DATTIJO MUHAMMAD, J.C.A.
JUSTICES:
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU BELBORE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
AMINU CHINDO – Appellant(s)
AND
SAMAILA ISAH – Respondent(s)
MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment): The Appellant as plaintiff, by a writ of summons dated and filed on 26th July, 2006, commenced Suit NO.KB/HC/21/06 at the Kebbi State High Court against the Respondent as Defendant seeking the following reliefs:-
“1. A declaration that plaintiffs is the owner and entitled to peaceful enjoyment and quiet possession of that piece and parcel of land situate near new market, Birnin Kebbi, which was boarded from the east by Aliyu Chindo and from the west by Shagari, from the North by Aw’walu and from the south by Nepa High Tension line.
2. A declaration that the defendant’s entry into the land in dispute which was boarded from the east by Aliyu Chindo and from the west by Shagari, from the North by Aw’walu and from the south by Nepa High Tension line situate near new market Birnin Kebbi constitute an act of trespass.
3. AN ORDER directing the defendant to vacate from the land by removing all the structures he illegally construct on the land.
4. AN ORDER of perpetual injunction restraining the Defendant by himself his privies and assigns from laying claim on the land in dispute.
5. N100,000.00 General damages for trespass.
6. Cost of this action.”
By a notice of preliminary objection dated 29/11/06, the Respondent challenged the competence of suit on the grounds:
“That Suit No.KB/HC/21/06 is an abuse of court process in that the subject matter and the parties are one and the same as in Suit No.SC/11/BK/CV/371/2006 dated 27/2/2006 before Sharia Court of Yaryara and motion for leave to appeal out of time, Motion NO.CA/K/223/M/02 and a subsequent motion i.e. CA/K/304/M/06 filed on 17th November, 2006 and this present case thus it robs this Hon. Court the powers/jurisdiction to hear/determine this matter.”
After a review of the addresses of counsel, the court below, in a considered ruling dated 8/3/07, upheld the objection against the suit and struck out same. The instant appeal is against the court’s decision vide Appellant’s notice dated and filed on the 4th May, 2007 containing three grounds.
Parties have filed and exchanged their briefs of argument. These briefs were, at the hearing of the appeal, adopted and relied upon.
The Appellant has distilled a lone issue from his three grounds of appeal for the determination of the appeal thus:
“1. Whether the trial High Court was right in deciding on the issue of substance of the parties grievance appropriate parties and the implication of the suit as it relates to the benefit at the preliminary stage and when no evidence is taken in the matter and when such issues constitute the substance of the parties case.”
The more appropriate issue formulated by the Respondent and on the basis of which the appeal will be determined reads:-
“2. Whether the lower court was right in holding that there was abuse of court process and in accordingly striking out the suit.”
Arguing the lone issue for the determination of the appeal, learned Counsel for the Appellant submits that the trial court’s finding that suit No.KB/HC/21/06 is an abuse of court process being in respect of the same subject matter and parties as in Suit No. SC/11/BK/CV/371/2006 before the Sharia Court Yanyara and the appeal in this court arising from motions Nos CA/K/223/M/06 and CA/K/304/M/06 is manifestly wrong. The Appellant by paragraphs 7 and 8 of his statement of claim had put in issue the identity of the land in respect of which he took out the writ in Suit No.KB/HC/21/06 against the Respondent. The affidavit in support of the preliminary objection on the other hand, argues learned Appellant counsel, contains no averment on the identity of the land in any of the three suits in contention. The identity of the land being litigated upon by parties is a necessary fact for the court’s determination of whether or not the abuse of its process has been occasioned. A determination by the court in the absence of the fact, it is contended, is perverse. The learned Counsel relies on Alex Oladele Elufioye v Ibrahim Halihu (1993) 7 SCNJ 347 AND Adesanya v Aderonmu 2 SCNOR 1180 at 1196.
Learned Appellant Counsel further contends that the issue of the identity of the parties in the various suits also remains unproved by the Respondent/objector. This fact is manifest in the court’s ruling at page 92 of the record of appeal. The court below, it is argued, embarked on speculation on the identity of parties in its determination whether or not the parties in the suits are the same. The issue of consequential benefit accruable to the parties which was never raised and canvassed by any of the parties could not form the basis of the court’s finding on the identity and sameness of the parties in the different suits. The processes available to the court and relevant in its determination of the identity of the parties in the various suits, Learned Appellant Counsel submits, are for the suit No.KB/HC/21/2006 to be found at pages 1 – 4 and 9 – 11; suit No. SCA/KBS/KB/131/2006 at pages 17-35 and 47-64; suit CA/K/223/SM/06 at pages 47 – 49 and suit USC/11/BK/F1/39/05 at pages 65 – 75. These do not support the court’s finding that consequential benefit accruable to the Appellant makes him a party in the other suits such that the instant suit constitutes an abuse of its process. The facts available clearly indicate that the parties in the other suits are different from those in suit No.KB/HC/21/2006. Relying on Kanumbu v Bunu (2006) all FWLR (Pt.300) 1734, Ugheneyovwe v State (2004) 12 NWLR (Pt.888) 626, Agbi v Ogbeh (2006) All FWLR (Pt 329) 988, learned counsel submits that speculation which the lower court resorted to in determining the identity of the parties can never take the place of the hard facts the court must base such crucial finding on. Further citing African Recorp v. Jop Const. (Nig) Ltd (2003) 13 NWLR (Pt 838) 609 at 635 and Agwasim v Ojichie (2004) 10 NWLR (Pt 882) 612 at 624, learned Appellant counsel submits that only a determination by the lower court of the sameness of parties and subject matter in the earlier suits as well as those in the subsequent suits will entitle the court to rightly find Appellant’s suit an abuse of its process.
Concluding, learned Appellant counsel argues that at the interlocutory stage the court below determined the preliminary objection, it lacked the necessary materials to take the decision. Nothing short of a full trial could, learned counsel contends, enable the court arrive at the correct decision. He urges that we resolve the issue in Appellant’s favour, allow the appeal and set aside the decision of the court below.
Learned Counsel for the Respondent Yahaya Mahmood is very terse in his argument of the appeal. In their five page brief, he asserts that the settled facts which inform the appeal are: the distribution of Alhaji Chindo’s estate following his death; the sale by one Aliyu Chindo of his share of the estate to the Respondent for N450,000.00, and the confirmation of the sale by a Competent Sharia Court; redistribution by another Competent Sharia Court of the estate of Alhaji Chindo and the allotment of portion of the estate sold to the Respondent to the Appellant and the pendency of a fresh suit before a Sharia Court as well as different applications before the Court of Appeal. These facts conclusively establish the abuse to which the process of the lower court has been subjected to by the institution of Suit No. KB/HC/21/2006. Learned Counsel relies on Ifeyinwa Ogoejeofo v Daniel Ogoejeofo (2006) 3 NWLR (Pt 966) 205, Browal Shipping (Nig) Ltd Aphrodite Ent (Nig) Ltd (2004) 10 NWLR (Pt 879) 462. Aishley Agwasini & Anor v David Ojichie and Anor (2004) 10 NWLR (Pt 882) 613 and Dumez Nig Plc v UBA Plc (2006) 14 NWLR (Pt 1000) 515 and submits that the Court below is right in its decision that suit No. KB/HC/21/2006 commenced by the Appellant is an abuse of its process. He urges that the appeal be dismissed and the lower court’s decision affirmed.
The lower court has resorted to the correct definition of the applicable principle, and procedure for the determination of whether or not a suit before a court constitutes an abuse of its process at page 89 of the record of appeal where it stated as follows:-
“The Supreme Court in the case of Agwasim v. Ojichie (2004) 10 NWLR (pt 882) 613 at 622-623
defined abuse of judicial process thus:-
The abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways such as:
a. Instituting a Multiplicity of actions on the same subject matter against the same apparent of the same issue: or
b. Instituting a multiplicity of actions on the same matter between same parties, or
b. Instituting different actions between the same parties simultaneously in different courts even though on different grounds; or
c. Where two similar process are used in respect of the exercise of the same right such as a cross appeal and a respondents notice.
At pages 624-625 of the judgment, the court went on to state that in determining whether an abuse of judicial process has occurred the court will consider the content of the 1st process viz-a-viz the second to see whether they are aimed at achieving the same purpose.”
Appellant’s complaint given the instant appeal is that the court below did not correctly apply the principles so clearly enunciated in the foregoing decision of the Apex Court. It has been asserted that the parties as well as the subject or purpose of the instant suit are not the same as in the earlier suits in the Sharia Courts and the Court of Appeal.
I agree with learned appellant counsel that this must be the relevant question to answer as no Plaintiff is entitled to simultaneously pursue two or more processes in respect of the same relief with the view to obtaining victory against the defendant in one of the processes. Where that fact is established none of the processes would avail the erring Plaintiff. See Okorodudu v Okoromadu (1977) 3 SC 21. Harriman v Harriman (1989) 5 NWLR (Pt 119) 6 Messrs N. v Sheep v S. Araz (2000) 15 NWLR (Pt 691) 622 and Jadesimi v Okotie-Eboh (1986) 1 NWLR (Pt 16) 264.
The court below compared the purpose behind the instant suit No.KB/HC/21/06 and those behind the earlier suits at page 90 of the record of appeal and thereafter made the following findings:-
“So although the parties may appear different, the subject matter of the two suits is infact the same. Besides, in the appeal before the Court of Appeal plaintiff/respondent must be taken to be a party as the appeal is filed on their behalf and that plaintiff/respondent stands to benefit if the appeal succeeds.
When the content of the instant suit therefore is considered, viz-a-viz the suits evidenced by exhibits 1 & 2 of the supporting affidavits  the inescapable conclusion one reaches is that the two are designed to achieve the same purposes.
Where two actions are filed in respect of the same matter, the second in point of time will constitute an abuse of the courts process”
Appellant’s Counsel contends that the foregoing findings and conclusion of the court are speculative and perverse as they do not draw from the materials before the court. I can not agree more.
Paragraphs 3, 4, 5, 6,7, 8, 9 and 10 of the affidavit in support of the preliminary objection decision in respect of which brought about the instant appeal contain facts against which Appellant’s suit as a process was compared by the court below.
Therein, it was averred that the Appellant and Respondent herein are the parties in suit No.KB/HC/21/2006 that gave birth to this appeal; that the late Alhaji Chindo’s heirs include Bashir Chindo, Aliyu Chindo, Yau Chindo and Aminu Chindo. It is further deposed to that three months after the distribution of Alhaji Chindo’s estate, Aliyu Chindo sold his share of the estate to the respondent; that the land in dispute is Aliyu Chindo’s portion of the estate that he sold to the Respondent; that following the disapproval of this sale, a subsequent distribution of the estate of the late Alhaji Chindo was made by the Upper Sharia Court 1 Birnin Kebbi. It is also averred that the fact of the sale to the Respondent of the portion allotted to Aliyu Chindo in the earlier distribution was not disclosed to the Upper Sharia Court that ordered the subsequent distribution; aggrieved by the second distribution, the Respondent herein, it is further averred, instituted an action at the Upper Sharia Court II Birnin Kebbi praying for the enforcement of the contract between him and Aliyu Chindo. The court ordered the refund of the purchase price to the respondent, a decision the respondent appealed against to the Sharia Court of Appeal. The Sharia Court of Appeal reversed the decision of the Upper Sharia Court in Birnin Kebbi, confirmed the distribution of the estate made at home and the sale between the Respondent and Aliyu Chindo. Bashir Chindo, it is further deposed to, vide motion CA/K/228/SM/06 and CA/K/331/SM/66 has, for himself and on behalf of the infant heirs of Alhaji Chindo including the Appellant, appealed against the decision of the Sharia Court of appeal.
Paragraphs 10 and 11 of the affidavit in support of the preliminary objection are particularly reproduced below for effect:-
“10. That the Respondent filed an action before the Sharia Court II Birnin Kebbi in respect to this same land refers (sic) to in paragraph 9 above which is still pending, paragraph II of the statement of claim of the Respondent/Plaintiff in Suit No.KB/HC/21/2006 is hereby pleaded and shall be relied upon.
11. That the multiplicity of actions by family members of the Respondent (paragraph 10, 11, 12 of the statement of claim of the Respondent/Plaintiff are hereby pleaded) is a calculated attempt to embarrass and prejudice the applicant and has caused the applicant untold hardship and public ridicule.”
Paragraphs, 7, 8, 9, 10, 11 and 12 of the Appellant’s statement of claim, great deal of which were pleaded in support of Respondent’s preliminary objection, are hereunder reproduced for their relevance:-
“7. The plaintiff state that the defendant claim he brought (sic) the land form someone but to the best of the plaintiff’s knowledge and belief the land sold to the defendant does not include part of the land of the plaintiff which the defendant encroached.
8. The plaintiff state that the area encroached into his land is categorically explained in the site plan of the whole land, which is hereby pleaded and shall be relied upon at the trial.
9. The plaintiff states that despite several warnings the defendant commenced building on the land in dispute.
10. The plaintiff also maintain that infact there was a pending case in respect of the original land purchased by the defendant filed against the defendant by a member of the plaintiffs family which was heard and determined by the Upper Sharia Court II Birinin Kebbi and Sharia Court of Appeal Birnin Kebbi and the matter is now pending before the Court of Appeal Kaduna.
11. The plaintiff state that he also has filed an action against the defendant before the original land purchased by the defendant which is not subject of this case as the defendant was claiming right of SHUFU’A under Islamic law.
12. The plaintiff states that despite the pendency of all the actions, in respect of the same land the defendant deliberately commenced building on the land he bought and the one which he encroached in the plaintiff’s land.”
(Underlining supplied for emphasis)
From the averments in the affidavit in support of the preliminary objection, the Exhibits annexed thereto, as well as Appellant’s statement of claim supra certain facts are beyond dispute. These are:-
(1) The purpose behind the instant suit, No.KB/HC/21/2006, is to expel the Respondent, a trespasser from Appellant’s land which land as pleaded in paragraph 7 of Appellant’s statement of claim is outside the land bought by the Respondent from Aliyu Chindo and therefore not the subject of the litigation in the Upper Sharia Court 1 and 11, and the Court of Appeal.
(2) By paragraph 11 of Appellant’s statement of claim, the suit commenced by the Appellant at Sharia Court 11 Birnin Kebbi was in respect of the land sold to the Respondent which remains distinctly different from the one in the instant suit.
(3) That the purpose behind the earlier suits commenced by the Respondent herein or against him is about the validity or otherwise of the sale to the Respondent of Aliyu Chindo’s share of the estate.
In law, it remains the principle, see 136 of the Evidence Act, that whoever asserts must bear the burden of proof. See also Olufosoye v. Fakodele (1993) 1 NWLR (Pt.272) 747 CA, Cop v. Ogunlayo (1993) 6 NWLR (pt.299) 259. Anyanwu v. Mbara (1992) 5 NWLR (Pt 242) 386 SC and Adaoke v Adibi (1992)NWLR (Pt 242) 410 sc- It is therefore Respondent’s burden to prove his allegation that the subject matter in the instant suit is the same as the one in the earlier suits. Since Respondent is yet to file his statement of claim and join issue with the Appellant, the latter’s clear claim persists to the effect that the land he litigates upon in the present suit is not the same as the one in the earlier suits including the appeal the earlier suits gave birth to. The respondent has provided no fact, not even in his affidavit in support of the objection, in contradiction of those averred to by the Appellant in his statement of claim. What has not been denied is deemed admitted. See Nwokoro v Onuma (1999) 12 Okomu Oil Palm Co. Ltd v Iserhienshen (1996) 5 NWLR (Pt 448) 304.
The court below proceeded to further find, and certainly wrongly too, that the purpose behind the litigation in the various suits is the same as the one in the instant suit: enforcement of the contract of sale of Aliyu Chindo’s portion of the estate of the late Alhaji Chindo which the Appellant in the instant suit must be deemed to be a beneficiary of.
The facts as averred to in Appellant’s statement of claim as earlier reproduced in this judgment clearly indicate that Appellant pursues the instant suit with the view to getting redress for Respondent’s trespass unto his land. The lower court’s inference that the purpose behind the instant suit, contrary to what the Appellant averred in his claim, is the enforcement of the contract between the Respondent and Aliyu Chindo, must be said to be perverse. I so hold. It is also a necessary part of the same principle that parties in a latter suit must be the same as in the earlier suit for the latter suit to be adjudged an abuse of the process of the court. See Saraki v Kotoye (1992) 9 NWLR (Pt 264) 156. Arubu v Aiyeleru (1993) 3 NWLR (Pt.280) 126 and Owonikoko v Arowo (1997) 10 NWLR (Pt 523) 61.
It is beyond any argument that the instant suit was commenced by the Appellant himself. The two suits at the Upper Sharia Courts Birnin Kebbi as well as the appeal at the Court of Appeal are between the Respondent herein and Bashir Chindo for himself and those other infant heirs of the estates of the late Alhaji Chindo. The Appellant herein is not one of those infant heirs. The two infant heirs are Aliyu Chindo who sold his share of the estate to the respondent and Yau Chindo to whom that very portion was subsequently allotted by the Upper Sharia Court. It is on their behalf that Bashir Chindo applied to the court of Appeal for leave to appeal against the decision of the Kebbi State sharia court of Appeal. Paragraph v-ix of the affidavit in support of the application for leave to appeal, processes annexed to the affidavit in support of Respondent’s preliminary objection, attest to this conclusion.
In particular in sub paragraph viii it is averred as follows:
“viii. That when the distribution was done by the court, the land bought by the 1st Respondent, was allocated to some one else (Ya’u Chindo) and not the 2nd Respondent and for that he sued the 2nd Respondent along with the applicant at Upper Sharia Court Birnin Kebbi where the court ordered that his money be returned to him. The record of proceedings of the Sharia Court Birnin Kebbi is hereto annexed and marked Exhibit “C”.”
1st and 2nd Respondents in the above averment refer to the Respondent herein and Aliyu Chindo from whom the Respondent bought a portion of late Alhaji Chindo’s estate. The averment certainly debunks the contention of learned respondent’s counsel and indeed the finding of the lower court that Appellant herein is a party to the earlier suits and the resultant conclusion that the instant suit is an abuse because it is between the same parties as in the earlier suits. What comes through from the averment is that the parties in the earlier suits including the appeal in the Court of Appeal arising from the suits in the Sharia Courts are Bashir Chindo for himself and on behalf of the two infants heirs Aliyu Chindo and Yau Chindo.
The other suit which was initiated by the Appellant and in respect of which the Respondent supplied no particulars, as averred in Appellant’s statement of claim, is in respect of a portion of the estate other than Appellant’s portion. Since the Respondent has not satisfied the twin requirements of the sameness of the subject matter and parties in the earlier suits as well as in the instant suit, it must be conceded to the Appellant’s counsel that the lower court has indeed erred. See Plateau State v A.-G. Federation (2006) 3 NWLR (Pt.967) 346 sc and Usman v Baba (2005)5 NWLR (Pt 917) 113A.
It must further be emphasized that the estate of the late Alhaji Chindo, following the decisions of the Upper Sharia Courts 1 & II through to the decision of the Kebbi State Sharia Court of Appeal, had been distributed. The individual heirs hold the portions allocated to them by the courts in the competent exercise of their jurisdictions. Inspite of the redistribution of the estate ordered by the courts, Appellant’s share and in respect of which he sues the Respondent in the instant matter has remained distinct and separate from the portions of the other heirs. The Sharia court of appeal judgment is the last subsisting judgment on the redistribution of the estate. The judgment which has not affected the Appellant’s portion remains valid until set aside: see A.G Anambra State v. AG Federation (2005) of NWLR (Pt.931) 572 and Eke v Ogbonda (2006) 18 NWLR (Pt.1012) 5061 SC. It is pretentious for the lower court to ignore the fact of this redistribution of the estate of late Chindo and to insist that the estate, inspite of the court’s subsisting judgment, remains collectively owned and enjoyed. The lower court’s conclusion, inspite of all the facts available to it, that the estate remained intact and that the heirs including the Appellant must be deemed joint beneficiaries, is clearly incorrect and perverse.
In sum, the facts on the basis of which the court determined Respondent’s preliminary objection and find that its process has been abused are completely unavailing. It is for this reason that I resolve the lone issue in the appeal in favour of the Appellant. The appeal is allowed and the decision of the lower court is hereby set aside. The case is remitted to the Kebbi State Chief Judge for same to be assigned to another Judge.
I assess cost of the appeal at N10,000.00 and order same against the Respondent in favour of the Appellant.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have read in draft, the judgment just delivered by my learned brother, Musa Dattijo Muhammad, JCA, and I am completely in agreement with his reasoning and conclusions.
I also allow this appeal and do abide by the consequential orders contained in the lead judgment, including order as to costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: Having been privileged to have read in draft, the judgment just delivered by my learned brother Musa Dattijo Muhammad, JCA, I hereby express my agreement and support with the same and have nothing complementing to add thereto.
In this regard, I adopt the reasoning and conclusion reached therein.
I am also of the firm viewpoint that the appeal is meritorious and should be allowed. I abide by the consequential orders made in the said leading judgment of my learned brother, Muhammad, JCA.
Appearances
Dr. Mohammed Isah holding brief of A.A. Malami SAN, For Appellant
AND
M.A. Sambo Esq. holding brief of Yahaya Mahmood Esq. For Respondent
