BAJIDA v. UMARU ALIYU TECHNICAL (2020)

BAJIDA v. UMARU ALIYU TECHNICAL

(2020)LCN/14619(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Wednesday, September 30, 2020

CA/S/54/2019

RATIO

PLEADING: ABUSE OF COURT PROCESS

It is without any doubt that the facts and circumstances of this appeal is within the context of a demurer. In the case of FADARE & ORS VS ATTORNEY GENERAL OYO STATE (1982) 4 SC, I NNAMANI JCS stated thus;
“…In the case of demurer… the preliminary point of law can be taken after the receipt of the statement of claim and before any defence is filed. The party in such a case relies on point of law even if the issues of fact in the statement of claim are conceded.” In this instant case the appellant filed a suit at the lower Court against the respondent. And without filing a statement of defence, the respondent challenged the jurisdiction of the lower Court to hear and determine the suit by way of a preliminary objection.
Order 22 Rule 1 & 2 of the Kebbi State High Court (Civil Proceeding) Rules, 2017 provides: –
1. No demurer shall be allowed.
2. (1) any party may by his pleadings raise any point of law and the judge may dispose of the point so raised before or at the trial.
(2) if in the opinion of the Judge the decision on such point of law substantially dispose of the whole proceedings or of any distinct part thereof the Judge may make such decision as may be just.
3. This provision shall be without prejudice to the Arbitration Act or any other law under which a defendant must apply for stay of proceedings before filing a statement or other statement of case on merit.
Bearing in mind the fact that demurer has been abolished by the Rules of Court and the Rules of Court are meant to be obeyed, they regulate matters in Court and help parties to prosecute their case to achieve fair hearing and quick dispensation of Justice. However, it is instructive to note that it has been decided by this Court and the apex Court that Rules of procedure are made for the convenience and order in hearing of case in Court. They are made to help the course of justice and not to defeat Justice. Therefore, the Rules are aids to the Court and not masters of the Court. A rule of the Court stands to guide the Court in the conduct of its business and not to hold as a mistress but as a handmaid. For Courts to read rules in the absolute without recourse to the Justice of the case will be making the Court slavish to the rules, and this is not the raison d`etre of rules of Court. See FIDELITY BANK PLC VS MONYE (2012) 10 NWLR (pt.1307)1 (SC). U.T.C (NIG.) LTD VS PAMOTEI (1989)2 NWLR (pt.103)244.
CHRISDON IND. CO. LTD. VS A.I.B LTD. (2002)8 NWLR (pt.768) 152.
CHIME VS CHIME (2001)3 NWLR (pt.701)527
ODUA INVEST CO. LTD VS TALABI (1997)10 NWLR (pt.523).
While the rules of Court and procedure are made to be obeyed, where their strict observance may lead to injustice on any of the parties, the Court should be liberal in interpreting the rules in order to do substantial justice. See ODUA VS F.R.N (2012) 11 NWLR (pt.1310)76.
Courts are enjoined always to do substantial justice by interpreting rules of Court to prevent undue technicalities.
See FIDELITY BANK VS MONYE (Supra), BELLO VS OYO STATE (1986) 5 NWLR (pt.45)828, NNEJI VS CHUKWU (1988) 2 NWLR (pt. 81) 184, OGUNBI VS KOSOKO (1991) 8 NWLR (pt. 210) 511, EZEGBU VS F.A.T.B (1992) 1 NWLR (pt.220) 699, NISHIZAWA LTD VS JETHWANI (1984) 12 SC 234.
Consequent to the above principles of law, I am of the firm view that once it is crystal clear on the face of it that there is an abuse of Court process, it will be a waste of the judicious time to insist that the defendant should file a defence. The Court can at that stage dismiss the suit. However, each case where there seems a glimpse of abuse of Court process, it has to be examined on its merit because different conditions would affect conclusion that could be reached as to whether or not an abuse exist. See WAZIRI VS GUMEL (2012) 9 NWLR 185 Looking at the antecedents of this case it is without any doubt that this suit is wanting in bonafide, it is frivolous, vexatious, oppressive and intended to annoy and to embarrass the respondent. It is a clear case of abuse of court process.
See SEVEN UP BOTTLING CO. LTD VS ABIOLA AND SONS BOTTLING CO. LTD (1996) 7 NWLR (PT. 463) 714. ARUBO VS AIYELERU(1993) 3 NWLR (PT.280) 131. SARAKI VS KOTOYE (1992) 9 NWLR (PT. 264) 156 P.V.C LTD VS LAWAL (2005) 5 NWLR (PT.911) 121. UNIFORM IND. LTD VS OCEANIC BANK INT. (NIG.) LTD (2005) 3 NWLR (PT.911) 82. ETTE AKPAN ETTE VS AKPAN AMOS HARRY EDOHO & ANR (2009) 8 NWLR (PT. 1144) 601.
A Court of law which is as well a Court of Justice will at all times prevent the improper use of its machinery and will not allow it to be used as a matter of vexations and oppressive behavior in the process of litigation. See BENA PLASTIC IND. LTD VS VASILYEV (1999) 10 NWLR (PT.624)620. HARRIMAN VS HARRIMAN (1989) 5 NWLR (PT. 119) 6.
The institution of this suit by the appellant against the respondent in view of an available undisputed fact that there was no contract between the appellant and the respondent. And the fact that the sale transaction between First Bank of Nig. Plc and the appellant, on the house subject matter of this suit, has been set aside, is clearly academic and therefore constituted a gross abuse of judicial process. One may ask what kind of order do the appellant want from the lower Court having known the undisputed fact that there was no any contract between him and the respondent. And more so having known that the sale transaction which gave him the right to own the house subject matter of this appeal, has been set aside and the purchase price was ordered to be refunded to him. If I may answer, the appellant wants the Court to make an order in vein. It is trite that the Court does not make an order in vain, the Court decides on live issues and not on issues that are dead on arrival. A Court has a duty to jealously guard and protect its process from abuse and therefore will not allow litigant to abuse its process. And where a Court comes to the conclusion that its process is being abused, the appropriate order to make is that of dismissal of the process.
See TSA IND. LTD VS F.B.N PLC (NO.1) (2012) 14 NWLR (PT. 1320) 326. KODE VS YUSSUF (2001) 4 NWLR (PT. 703) 392. Per ABUBAKAR MAHMUD TALBA, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

ALH. ISAH UMAR BAJIDA APPELANT(S)

And

ALH. UMARU ALIYU TECHNICAL RESPONDENT(S)

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of High Court of Justice, Birnin Kebbi, Kebbi State delivered on the 7th day of March, 2019 in Suit No.: KB/HC/01/2019.

On the 4th day of January 2019, the appellant instituted an action against the respondent before the High Court of Justice Birnin Kebbi. By the endorsement on the writ of summons at page 2 of the records, the appellant as claimant, claimed the following reliefs:
1. An order of this Honourable Court to the effect that there is no contract between the claimant and the defendant;
2. An order of this Honourable Court restraining the defendant his servants, agents, privies any one or authority from disturbing the quiet and peaceful enjoyment of the house in dispute;
3. Cost of action.

Upon being served with the writ of summons the respondent filed a memorandum of conditional appearance and a notice of preliminary objection praying the Court for the following reliefs:
1. An order of this Honourable Court dismissing Suit No.: KB/HC/01/2019 for being an abuse of Court Process.
2. An Order of

this Honourable Court allowing the Chief Sheriff of High Court of Kebbi State to set aside its earlier possession it gave the claimant;
3. An Order directing the Claimant/Respondent to pay two hundred thousand cost of litigation (₦200,000.00) to the applicants.

In support of the notice of preliminary objection is a seventeen (17) Paragraph affidavit. In response to the notice of Preliminary Objection the appellant filed a seven (7) Paragraph Counter affidavit in opposition to the preliminary objection. Both learned counsel for the appellant and the respondent filed written addresses.

In a considered Ruling, the learned trial Judge upheld the preliminary objection and dismissed the suit for being an abuse of Court process.

Aggrieved by the decision of the lower Court, the appellant appealed to this Court via a notice of appeal filed on the 7th day of March, 2019. There are four grounds of appeal contained at pages 101 – 104 of the record of appeal, which was transmitted on the 2nd day of April, 2019.

The grounds of appeal and their particulars are as follows:
GROUND 1
The decision of the lower Court is against

the weight of evidence.
GROUND 2
The lower Court erred in law when it heard and determine the preliminary objection when it is clear that it is incompetent.
PARTICULARS
a. In matter of preliminary objection, it is the facts as stated in law in the writ and statement of claim that would be looked into together with any exhibit attached irrespective of the defence of the opponent.
b. The respondent did not relate the preliminary objection to the writ of summons and statement of claim, rather he relied on extrinsic factors.
GROUND 3
The lower Court erred in law when it upheld the preliminary objection of the respondent holding that the case is an abuse of Court process.
PARTICULARS
a. For there to be abuse of Court process, parties, subject matter and issues must be the same.
b. Parties and issues in the suits under reference are not the same.
GROUND 4
The lower Court erred when it relied on documents not pleaded by the appellant which documents tend to show defence of the respondent.
PARTICULARS
a. The writ of summons and statement of claim of the appellant did not talk of the

exhibit relied upon by the respondent.
b. In determination of preliminary objection, it is only the writ and statement of claim that the Court has to look into irrespective of the defence of the adverse party.

At the hearing of the appeal on the 13th day of July, 2020 the Court Registrar informed the Court that the respondent counsel Hussaini Zakariya was served with a hearing notice via sms on the 7th day of July, 2020, on phone number 08037601820. The Appellant’s Counsel Magnus Ihejirika also informed the Court that the respondent did not file any brief and the appellant’s brief of argument was served on the respondent counsel on the 2nd day of May, 2019. He also informed the Court that the appeal is for hearing. The appellant counsel adopted the appellant’s brief of argument filed on 1st day of June, 2020 and he urged the Court to allow the appeal, and set aside the Ruling of the Lower Court and order a retrial on the merit.

From the four grounds of appeal, the appellant distilled two issues for determination thus:
1. Whether the Lower Court was right in hearing and determining the preliminary objection on the basis and reliance on

documents not stated in the writ and or statement of claim. (Grounds 2 & 4);
2. Whether the Court below was right in upholding the preliminary objection dismissing the suit and holding that it is an abuse of Court process. (Grounds 1 & 2)

The crux of this appeal is the dismissal of the suit on the ground that it is an abuse of Court Process. Therefore, the first issue raised by the appellant can be subsumed into the second issue. For that reason, I adopt the second issue for the determination of this appeal. But before I proceed to consider the submission in the appellant brief, I should make it clear that the failure of the respondent to file a brief does not translate into automatic victory for the appellant. The Court has a duty, an obligation to consider the appeal on its merit. See JOHN HOLT VENTURES Vs OPUTA (1996) 9 NWLR (Pt 470) 10 and CAMEROON AIRLINES Vs OTUTUIZU (2011) LPELR – 827 (SC).

In arguing this appeal, the appellant’s counsel submitted that the Court below was not right in hearing and determining the preliminary objection on the basis of issues and documents not contained in the writ, and statement of claim from

the writ and statement of claim the appellant averred that he bought the house in dispute from First Bank of Nigeria PLC following the failure of a company I. U. A. Technical Company Nigeria Ltd in repaying the loan facility it used the house as a collateral to obtain loan from the bank. Since the purchase, the respondent has been disturbing his peace and quiet enjoyment of the house notwithstanding the fact that the loan contract was between the Company and the bank and the sale contract is between the bank and the appellant. The prayer of the appellant at pages 4 and 6 of the record is for a declaration that there is no contract between the appellant and the respondent and for the Court to restrain the respondent from disturbing the peace and quiet enjoyment of the house by the appellant. Throughout the writ and statement of claim there was no mention of any Court Judgment.

The respondent as defendant raised a preliminary objection contending that the suit is an abuse of Court process. The respondent admitted that the appellant bought the house from First Bank but failed to state the circumstances leading to the sale of the property. And he never

stated in the affidavit that he is the owner of the house. The respondent attached three judgments as Exhibits A, B and C. Exhibit A is the Judgment wherein the High Court of Birnin Kebbi ordered for the refund of the purchase price. The respondent is not a party to it. Exhibit B is the Judgment that confirmed the sale, while Exhibit C is the Judgment of the Court of Appeal quashing the judgment in Exhibit A, on the ground that the suit before the lower Court is incompetent. Despite the fact that the writ and the statement of claim did not mention the judgment and the respondent did not file a defence, the lower Court relied on the judgments which is wrong and it occasioned miscarriage of justices.

Learned counsel submitted that a preliminary objection is questioning the competence and jurisdiction of the Court to entertain a suit. And what is to be relied upon is solely the writ and the statement of claim including any document accompanying it. The defence of the defendant is immaterial. He relied on the following cases AGHEDO V ADENOMO (2019) 1 WRN 1 at 39, MUSACONI LTD V ASPINALL (2014) ALL FWLR (Pt 710) 1276, EBIRIM V AGBUGBA (2016) ALL FWLR (Pt 827)

Paragraphs 4-17 of the affidavit in support of the preliminary objection at pages 13-14 of the record relate to facts and documents not contained in the appellant’s writ and statement of claim. And the respondent did not file any statement of defence in order to join issues at the time he filed the preliminary objection. The lower Court was too hasty in determining the preliminary objection. It is trite that in some deserving instances it is better to allow the matter to go into trial so that when evidence is led, the Court will have a clear view of the facts before it. The Court will be in a position to determine whether it has jurisdiction or not. The Court below has prevented the matter from being heard on the merits. The preliminary objection is targeted on whether the Court has jurisdiction or not. It has nothing to do with the success or otherwise of the case on merit. At page 92 of the record the Court below stated thus:
“The claimant’s counsel did not tender any document to sustain his claim that there is transfer of property from First Bank to the claimant.”

The above issue can only be determined when evidence

is led. He relied on the case of EBIRIM V AGBUGBA (supra).

If the Court had restricted itself to the writ and the statement of claim, it would have arrived at a different decision.

On issues of abuse of Court process, the learned counsel submitted that this suit is not an abuse of Court process. He cited the case of NECTARIOUS MARITIME V CITIBANK NIG (2016) ALL FWLR (PT 825) 214.
IGBEKE V OKADIGBO (2014) ALL FWLR (PT 710) 1299.

He submitted that Exhibit A is a case between the appellant and the First Bank. The respondent is not a party to it and he is not a privy to any of the parties thereto. The present suit is a case between the appellant and the respondents First Bank is not a party to it. Therefore, parties are not the same.

In Exhibit A, the appellant prayed for the return of the purchase price of the house in issue. In the present case, he is seeking for an injunction to restrain the respondent from disturbing his peace and quiet enjoyment of the house. Therefore, issues and relief are not the same. As such there is no abuse of Court process.

The respondent has not shown that he is the owner of the house. He is not

the one that sold the house to the appellant. If he has interest in the house, he should sue First Bank to resolve the issue. Even though Exhibit A mandated the First Bank to return the purchase price, it is a matter between the First Bank of Nig. and the appellant. The respondent is just a meddlesome interloper. If the appellant is to forfeit the house, he has to forfeit it to the Bank and not the respondent whom he did not have any business with. The respondent is therefore unlawfully infringing upon the rights of the appellant. The appellant has a case against him which the lower Court has jurisdiction to entertain.

In this instant case the appellant filed a suit at the lower Court against the respondent. And without filing a statement of defence, the respondent challenged the jurisdiction of the lower Court to hear and determine the suit by way of a preliminary objection.
Order 22 Rule 1 & 2 of the Kebbi State High Court (Civil Proceeding) Rules, 2017 provides: –
1. No demurer shall be allowed.
2. (1) any party may by his pleadings raise any point of law and the judge may dispose of the point so raised before or at the trial.
(2) if in the opinion of the Judge the decision on such point of law substantially dispose of the whole proceedings or of any distinct part thereof the Judge may make such decision as may be just.
3. This provision shall be without prejudice to the Arbitration Act or any other law under which a defendant must apply for stay of proceedings before filing a statement or other statement of case on merit.
Bearing in mind the fact that demurer has been abolished by the Rules of Court and the Rules of Court are meant to be obeyed, they regulate matters in Court and help parties to prosecute their case to achieve fair hearing and quick

dispensation of Justice. However, it is instructive to note that it has been decided by this Court and the apex Court that Rules of procedure are made for the convenience and order in hearing of case in Court. They are made to help the course of justice and not to defeat Justice. Therefore, the Rules are aids to the Court and not masters of the Court. A rule of the Court stands to guide the Court in the conduct of its business and not to hold as a mistress but as a handmaid. For Courts to read rules in the absolute without recourse to the Justice of the case will be making the Court slavish to the rules, and this is not the raison d`etre of rules of Court. See FIDELITY BANK PLC VS MONYE (2012) 10 NWLR (pt.1307)1 (SC). U.T.C (NIG.) LTD VS PAMOTEI (1989)2 NWLR (pt.103)244.
CHRISDON IND. CO. LTD. VS A.I.B LTD. (2002)8 NWLR (pt.768) 152.
CHIME VS CHIME (2001)3 NWLR (pt.701)527
ODUA INVEST CO. LTD VS TALABI (1997)10 NWLR (pt.523).
While the rules of Court and procedure are made to be obeyed, where their strict observance may lead to injustice on any of the parties, the Court should be liberal in interpreting the rules in order to do

substantial justice. See ODUA VS F.R.N (2012) 11 NWLR (pt.1310)76.
Courts are enjoined always to do substantial justice by interpreting rules of Court to prevent undue technicalities.
See FIDELITY BANK VS MONYE (Supra), BELLO VS OYO STATE (1986) 5 NWLR (pt.45)828, NNEJI VS CHUKWU (1988) 2 NWLR (pt. 81) 184, OGUNBI VS KOSOKO (1991) 8 NWLR (pt. 210) 511, EZEGBU VS F.A.T.B (1992) 1 NWLR (pt.220) 699, NISHIZAWA LTD VS JETHWANI (1984) 12 SC 234.
Consequent to the above principles of law, I am of the firm view that once it is crystal clear on the face of it that there is an abuse of Court process, it will be a waste of the judicious time to insist that the defendant should file a defence. The Court can at that stage dismiss the suit. However, each case where there seems a glimpse of abuse of Court process, it has to be examined on its merit because different conditions would affect conclusion that could be reached as to whether or not an abuse exist. See WAZIRI VS GUMEL (2012) 9 NWLR 185.

In this instant case in Exhibit B Suit No. KB/HC/28/2008, I. U. A TECHNICAL COMPANY (NIG) LTD and ALHAJI UMAR ALIYU TECHINICAL, the second plaintiff and

the respondent in this appeal instituted an action against FIRST BANK OF NIG. PLC and ALH. ISAH UMAR BAJIDA, the second defendant and appellant in this appeal.
The plaintiff claims are as follows: –
1. Declaration that the power of sale exercised by the 1st defendants is null and void and the 1st defendant is not entitled to exercise such power of sales as mortgagee.
2. Declaration that the purported sale to the 2nd defendant by the house and landed property of the 2nd plaintiff situated at G.R.A Birnin Kebbi is null and void and should be set aside.
3. Declaration that the purported auction sale is null and void and not in conformity with the provision of Auctioneer Act Laws of Kebbi State 1996.
4. An order for perpetual injunction restraining the 2nd defendant his agent, privies from taking possession of house or any other way reading with/the property.
5. For such further order or orders as this Honourable Court may deem fit to make.

At the end of the hearing the Court held thus;
“In effect the sale of the house situated at G.R.A Birnin Kebbi with certificate of occupancy No: B1/G/4355 by the 1st

defendant having been made in accordance with paragraph 8 (b) of the mortgage agreement executed by the parties to this suit is valid and subsisting. Correspondingly, the 1st defendant having acquired the Governor’s consent to the sale transaction which is the requirement for any land transaction.
Under the Land Use Act 1978, the 2nd defendant acquires good title as an innocent buyer.
Finally, all the four reliefs sought for by the plaintiff are hereby not granted and his claim dismissed for lacking merit…”

See pages 33-45 of the records. It is without any doubt that the plaintiffs which includes the respondent in this appeal lost the house subject matter of this appeal to the appellant who bought same from First bank of Nig. Plc.

However, the second plaintiff who is the respondent in this appeal filed an appeal against the judgment in Exhibit B. and the 2nd defendant who is the appellant in this appeal raised a preliminary objection to the appeal, contending amongst other things that the writ of summons before the Court below was neither signed by the appellant nor his counsel. On that basis the Court of Appeal per F.O.

OHO JCA, dismissed the appeal. See Exhibit C, at pages 46-57 of the records. It’s instructive to note that even though the Court of Appeal had quashed the proceedings of the lower Court in Exhibit B, the fact still remains that the sale of the house subject matter of this appeal is still valid and subsisting. And the appellant in this appeal who bought the house from First Bank of Nigeria plc acquired a good title.

But curiously the appellant on 17th of May, 2017 he instituted an action against First Bank of Nig. Plc seeking for the following reliefs.
1. An order of Court directing the defendant to refund and/or pay the claimant the sum of ₦9,000,000:00 (Nine Million Naira) only being payment made by the claimant to the defendant for the purchase of all that landed property located at GRA Area Birnin Kebbi, Kebbi State and covered by certificate of occupancy No: B1/G/4355 dated the 13th January, 2000.
2. An order directing the defendant to pay the claimant interest at the rate of 21% on ₦9,000,000:00 (Nine Million Naira) from the month of July 2008 to date of Judgment and thereafter 31% till final liquidation of the judgment

sum.
3. The sum of ₦150,000:00 (One hundred and fifty thousand naira) only being the expenses incurred by the claimant in payment of statutory charges, outgoings, impositions and rent reserved or revised.
4. The sum of ₦3,500,000:00 (Three Million and five hundred thousand naira) only as general damages.
5. Cost of action.

After hearing the lower Court entered judgment in favour of the claimant now appellant. The Court held as follows: –
1. The defendant is hereby ordered to refund to the claimant the sum of ₦9,000,000:00 (Nine Million naira) only being the payment made by the claimant to the defendant for the purchase of all that landed property located at G.R.A. Area Birnin Kebbi, Kebbi State and covered by certificate of occupancy No: B1/G/4355 dated the 13th January, 2000.
2. 10% interest to be paid on the ₦9,000,000:00 from the judgment date until it is wholly paid.
3. The sum of ₦1,000,000:00 as general damages.
4. Cost of action which is assessed as ₦270,000 only. See Exhibit A pages 21-32 of the records.

Now by implication it is not in doubt that the lower Court had set aside the sale of

the house by the bank to the appellant, having ordered for the refund of the purchase price, with interest at 10% from the date of judgment until wholly paid. General damages in the sum of ₦1,000,000:00 and cost of action assessed at ₦270,000:00.
But again the appellant instituted suit No: KB/HC/01/2019, subject of this appeal, claiming the relief as contained in the endorsement on the writ; which is earlier produced in this judgment.
Having critically analyzed Exhibits A, B and C it is clearly revealed that there was no any form of contract between the appellant and the respondent. Rather there was a loan/mortgage transaction between the respondent and the First Bank of Nig. Plc, on the house subject matter of this appeal. And there was a transaction for the sale of the house subject matter of this appeal between the First Bank of Nig. Plc and the appellant. And by his own action the sale transaction between the First Bank of Nig. Plc and the appellant was set aside as per the judgment in Exhibit A. The said judgment is still valid and subsisting and there is no appeal against the judgment.
Looking at the antecedents of this case it is

without any doubt that this suit is wanting in bonafide, it is frivolous, vexatious, oppressive and intended to annoy and to embarrass the respondent. It is a clear case of abuse of court process.
See SEVEN UP BOTTLING CO. LTD VS ABIOLA AND SONS BOTTLING CO. LTD (1996) 7 NWLR (PT. 463) 714. ARUBO VS AIYELERU(1993) 3 NWLR (PT.280) 131. SARAKI VS KOTOYE (1992) 9 NWLR (PT. 264) 156 P.V.C LTD VS LAWAL (2005) 5 NWLR (PT.911) 121. UNIFORM IND. LTD VS OCEANIC BANK INT. (NIG.) LTD (2005) 3 NWLR (PT.911) 82. ETTE AKPAN ETTE VS AKPAN AMOS HARRY EDOHO & ANR (2009) 8 NWLR (PT. 1144) 601.
A Court of law which is as well a Court of Justice will at all times prevent the improper use of its machinery and will not allow it to be used as a matter of vexations and oppressive behavior in the process of litigation. See BENA PLASTIC IND. LTD VS VASILYEV (1999) 10 NWLR (PT.624)620. HARRIMAN VS HARRIMAN (1989) 5 NWLR (PT. 119) 6.
The institution of this suit by the appellant against the respondent in view of an available undisputed fact that there was no contract between the appellant and the respondent. And the fact that the sale transaction between First Bank

of Nig. Plc and the appellant, on the house subject matter of this suit, has been set aside, is clearly academic and therefore constituted a gross abuse of judicial process. One may ask what kind of order do the appellant want from the lower Court having known the undisputed fact that there was no any contract between him and the respondent. And more so having known that the sale transaction which gave him the right to own the house subject matter of this appeal, has been set aside and the purchase price was ordered to be refunded to him. If I may answer, the appellant wants the Court to make an order in vein. It is trite that the Court does not make an order in vain, the Court decides on live issues and not on issues that are dead on arrival. A Court has a duty to jealously guard and protect its process from abuse and therefore will not allow litigant to abuse its process. And where a Court comes to the conclusion that its process is being abused, the appropriate order to make is that of dismissal of the process.
See TSA IND. LTD VS F.B.N PLC (NO.1) (2012) 14 NWLR (PT. 1320) 326. KODE VS YUSSUF (2001) 4 NWLR (PT. 703) 392.

In furtherance of the above principles of law the sole issue is resolved against the appellant. The appeal is dismissed. The Ruling of Kebbi State High Court delivered on the 7th March, 2019 in suit NO: KB/HC/01/2019 is hereby affirmed.
No order for cost.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned Brother, ABUBAKAR M. TALBA, JCA. I am in agreement with the reasoning and conclusion reached in disallowing the Appeal as same is adjudged un-meritorious. I abide by all the consequential orders made thereto.

Appearances:

Magnus Ihejirka Esq For Appellant(s)

C/O His Solicitor Savannah law chambers For Respondent(s)