YA’U CHINDO & ANOR v. SAMAILA ISAH
(2018)LCN/12229(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/S/86/2017
RATIO
COURT AND PROCEDURE: WHERE AN ISSUE IS RAISED SUO MOTO
“The law is trite that where a Court in the exercise of its power raises any issue suo motu, it must adhere strictly to the principles of fair hearing by inviting the parties in the case to address the Court on the issue thereby raised. See Aiyetoro Community Trading Company ltd. v. NACB Ltd. (2003) 12 NWLR (Pt. 834) page 346 at 376, where it was held thus: ‘A trial or appellate Court can as of right raise issues that may aid the determination of the issues in controversy but it cannot decide such issues without the parties’ counsel reacting to such issues raised suo motu by the Court. However, in order to maintain the judicial neutrality and thereby enable the Judge refrain from deciding a case or issues raised by him suo motu in his judgment, the best posture for the Judge is to confine himself on issues of fact solely raised by the parties.'”PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES:
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. YA’U CHINDO
2. BASHIR CHINDO – Appellant(s)
AND
SAMAILA ISAH – Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):
This appeal was triggered by the judgment of the High Court of Kebbi State sitting in Birnin Kebbi delivered on 23rd March, 2017 in suit number KB/HC/29/2015 wherein the learned trial Judge dismissed the Appellants’ claim as constituting an abuse of Court process.
The action was filed by the appellants against the respondent at the Court below seeking for declaration of title to a piece of land located in Birnin Kebbi.
The 1st Appellant claimed that his share of inheritance awarded to him by the Sharia Court that made the distribution was wrongly trespassed by the respondent.
The respondent’s defence was that the judgment which gave ownership to the appellant has been set aside by the Sharia Court of Appeal and further that the appellants’ case as presently constituted has been decided by High Court in suit no. KB/HC/21/2006. The Court below, in its judgment the subject of the instant appeal, dismissed the appellants’ case on the ground that it is an abuse of Court process as same has been decided by a competent Court.
The appellants contend that none of the parties before the Court below raised the issue of abuse of Court process. The issue was allegedly raised suo motu and decided upon by the trial Court without calling on the parties to address it.
The appellants being dissatisfied with the said decision proceeded to appeal by filing a notice premised on twin grounds thus: –
1. The Judgment is against the weight of evidence.
2. The learned trial Judge erred in law which error was occasioned by the respondent when he told the Court that Exhibit B” (Suit No. KB/HC/21 /2006) is the same as Suit No.KB/HC/29/2015 which led to the trial Court dismissing the Appellants’ case as an abuse of Court process when the Court held:
” The contract of sale of land between the Defendant and Aliyu Chindo has been confirmed by the High Court and Sharia Court of Appeal and this Court can do nothing about it as Courts of coordinate jurisdiction. It is unfortunate that I already went through the trial in this Case before realising what actually took place. Case dismissed. “
PARTICULARS
1. Suit No. KB/HC/21/2006 was on appeal to this Court in which in Appeal No. CA/S/74/2012 where the Appellant was given Judgment.
2. The Judgment in KB/HC/21/2006 Exhibit B” relied on by the trial Court has been set aside by the Court of Appeal.
3. The Parties in Exhibit B” and the present case are different.
4. The Subject matter in Exhibit B and this case are different.
The learned counsel for the Appellants Hussaini Zakariyya, Esq., formulated a lone issue, from the above twin grounds, for determination in this appeal thus:
Whether by Suit No. KB/HC/21/2006 (Exhibit D); Suit No. KB/HC/29/2015 is an abuse of Court process (Distilled from Ground 1 and 2 of the notice of appeal)
The same issue was adopted by the learned counsel for the Respondent Markus Ihejerika, Esq., whose brief was held, at the hearing of the appeal, by Mr. P. C. Onyenobi, Esq.
An abuse of Court process was defined in DUMEZ (NIG) PLC v. UBA PLC (2006) 14 NWLR AT 515 at 519 as follows:-
“Abuse of process is a term generally applied to a proceeding which is wanting In bona fide; Where it is frivolous, vexatious and oppressive. It also means the improper use of the legal process.
Similarly, in the case of DUMEZ (NIG) PLC v. UBA PLC (Supra) at 519 it was held thus: –
“Where, as in this case, two suits are pending between the same parties and arise out of the same subject matter and are actions in which common questions of law and facts arise or all edged right to relief are in respect of or arise out of the same transaction or series of transactions; the suit filed later in time would be vexatious and constitute an abuse of process.”
It was argued, for the Appellants, that the suit No. KB/HC/21/2006, that culminated into the concluded appeal No. CA/S/74/2012, involves same issues and parties having common roots of interest as the one leading to this appeal. The former concluded and judgment on June 2016. The two cases juxtaposed are as follows:
The dispute in suit KB/HC/2J /2006
Parties: Aminu Chindo vs Sama’ila Isah
Subject Matter: Declaration of title/Trespass
The disputed property in KB/HC/21/2006 was described in the statement of claim thus:
“The land in dispute is situate in Birnin Kebbi town near the Birnin Kebbi new market and it has the following boundaries.
East = Bound by Aliyu Chindo
West = Bounded by Shagari
North = Bounded by Awwal and
South = Bounded by NEPA high tension line. (See the case of CA/S/74/2012 AMINU CHINDO v. SAMAILA ISAH unreported).
On the other hand, suit no. KB/HC/29/2015 the subject of the instant appeal has the following details: –
“The land in dispute is Located in Birnin Kebbi town adjacent new market Birnin Kebbi measuring 45ft by 20ft which is bounded
East = Access road and water channel
west = Shagari and Aminu
North = Awwalu
South = NEPA high tension line and access road.
It was submitted for the appellant that the decision of the Court in KB/HC/21/2006 on appeal to this Court in CA/S/74/2012 was in favour of the Aminu Chindo a brother to the Appellant herein. It was further argued that suit no. KB/HC/29/2015 was in respect of another adjoining land of common source encroached by the respondent.
It was submitted that the disputed land in KB/HC/21/2006, in respect of which judgment was entered in favour of Aminu Chindo is different from its eastern boundary with the disputed land in KB/HC/29/2015. The PW2 (Aminu Chindo) who was the Claimant in KB/HC/21/2006 told the trial Court in his evidence in chief that “the land in dispute (KB/HC/29/2015) was part of the estate of their late father Alhaji Chindo which was divided among his heirs”. This was never challenged by the respondent and his stance was therefore that he admitted same.
The pertinent question, however, is not whether the disputed land in KB/HC/21/2006 is different from the one suit no. KB/HC/29/2015, the subject of the instant appeal. It is rather whether the Court below raised the issue of abuse of Court process suo motu and determined same without input from the Learned Counsel representing the parties before it.
It was submitted for the Appellant that the trial Judge had suo motu raised the issue of “abuse of Court Process” and refused to ask parties to address it on same and further used same to deliver the judgment. The Court was urged to allow the appeal and set aside the judgment of the Court below.
The learned counsel for the Respondent however, in his relpy relied on the case of NECTARIOUS MARITIME v. CITIBANK NIGERIA (2016) ALL FWLR (pt. 825) 2J4 at 226, in arguing that the Court below was right in holding that the case, from which this appeal arose, was an abuse of Court process.
He argued that the totality of the circumstance of the case including exhibits tendered will be looked into before concluding whether a case is an abuse of process. It was further argued that the lower Court took into consideration the totality of evidence including the history of the land in dispute and the exhibits tendered before arriving at the conclusion that the matter is an abuse of Court process. The Court was urged to resolve the sole issue in favour of the Respondent against the Appellant.
The argument of the learned counsel for the Respondent that the issue of abuse or Court process did not emanate from the grounds of appeal or issue for determination is seemingly misconceived. The sole issue for determination is at the risk of repetition, reproduced thus:
Whether by Suit No. KB/HC/21/2006 (Exhibit D); Suit No. KB/HC/29/2015 is an abuse of Court process (Distilled from Ground 1 and 2 of the notice of appeal)
This issue clearly questions the issue of abuse of Court process. This issue is predicated upon whether the Court below raised the issue of abuse of Court process suo motu and determined same without input from the Learned Counsel representing the parties before it.
Much as the Court below was entitled to raise any issue suo motu, it is duty bound to call on the learned counsel on both sides to address the Issue before making any pronouncement thereon.
It is not in dispute that the Court below raised the issue of the abuse of Court process suo motu and yet failed to invite the learned counsel for the parties to address the issue. The question whether suit no KB/HC/29/2015 constitutes an abuse of Court process in view of an earlier suit no KB/HC/21/2006 that went through the process of appeal in CA/S/74/2012 could only have been resolved after listening to parties’ addresses regarding the issue raised by the Court below. In the case of State v. Oladimeji (2003) 14 NWLR (Pt. 839) page 57 at 69-72 the Supreme Court held thus:-
“In the determination of disputes between parties, the Court should confine itself on the issues raised by the parties. The Court is not competent to suo motu make a case for either or both of the parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it. This is because when an issue is not properly placed before the Court, it has no business whatsoever to deal with it. Where, however the Court raises an issue suo motu and the issue goes to the root of the case, the parties must be given an opportunity to address the Court on the point.”
The law is trite that where a Court in the exercise of its power raises any issue suo motu, it must adhere strictly to the principles of fair hearing by inviting the parties in the case to address the Court on the issue thereby raised. See Aiyetoro Community Trading Company ltd. v. NACB Ltd. (2003) 12 NWLR (Pt. 834) page 346 at 376, where it was held thus:
“A trial or appellate Court can as of right raise issues that may aid the determination of the issues in controversy but it cannot decide such issues without the parties’ counsel reacting to such issues raised suo motu by the Court. However, in order to maintain the judicial neutrality and thereby enable the Judge refrain from deciding a case or issues raised by him suo motu in his judgment, the best posture for the Judge is to confine himself on issues of fact solely raised by the parties.”
The omission to afford the parties the opportunity to be heard before dismissing the Appellants’ case amounted to a serious misdirection and decision predicated upon it is clearly perverse and liable to be upturned. In OMOKUWAJO v. F.R.N (2013) 9 NWLR Pt. 1359 300 at 309: 8 the Supreme Court held thus:-
“Where the Court of Appeal suo motu raises a vital issue as it did in this case, if should give the parties to the suit an opportunity to address it on the issue. This is because, the issue relates to the realm of fair hearing … In this case, the Court of Appeal should have given the appellant the opportunity to address it on the issue of increase of the appellant’s sentence before it increased the sentence.”
In the instant case, the issue of abuse of Court process was raised by the Court below suo motu. The law is well settled that raising of issues suo motu, requires that the parties be given an opportunity to address the Court before a decision on the point is made by the Court. See Aranda & Anon v. Lakanmi (1974) 1 All NLR (Pt. 1) 168 at p. 178: Olusanya v. Olusanya (1983) 3 S.C. 41 at pp. 56-57, (1983) 1 SCNLR 134: Alhaji Dahiru Saude v. Alhaji Halliru Abdullahi (1989) SCNJ 215 at pp. 229-230. (1989) 4 NWLR (pt. 116) 387.
The lower Court, in the instant case, failed to afford the parties an opportunity to address the issue of abuse of Court process raised suo motu. I am satisfied that the lower Court wrongly exercised its discretion. This gives me a compelling reason for resolving the sole issue in favour of the Appellant.
The appeal succeeds perforce and is hereby allowed. The judgment of the High Court of Kebbi State delivered on 23rd March, 2017 in suit number KB/HC/29/2015 is hereby set aside.
In the stead therefore, a trial of the suit in KB/HC/29/2015 de-novo is hereby ordered before another Judge of the same Court. There shall be no order as to costs.
AMINA AUDI WAMBAI, J.C.A.: I have read the judgment of my learned brother, Mukhtar, JCA with whom I am in agreement that the lower Court having suo motu raised the issue of the suit constituting an abuse of Court process, ought to have afforded parties the opportunity to address it before deciding on it and dismissing the Appellant’s case.
This, I agree with my learned brother, amounts to a denial of fair hearing. On this score and the detailed reasons advanced in the lead judgment, I also allow the appeal and abide by the consequential order for the trial of the case before another judge.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother HUSSEIN MUKHTAR, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. I abide by other consequential orders of Court.
Appearances:
Hussaini Zakariyya, Esq., with him Philip James, Esq. For Appellant(s)
P. C. Onyenobi, Esq., (holding brief of Markus Ihejerika, Esq,.)
For Respondent(s)
