ZEST NEWS LIMITED v. SENATOR MAHMUD WAZIRI
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of March, 2003
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
ZEST NEWS LIMITED – Appellant(s)
SENATOR MAHMUD WAZIRI – Respondent(s)
GEORGE ADESOLA OGUNTADE, J.C.A. (Delivering the Leading Judgment): At the High Court of Abuja, the appellant was the plaintiff and the respondent was the defendant. The parties are hereinafter referred to by the same description they bore before the lower court. On 10th May, 2001, the plaintiff issued its writ of summons claiming from the defendant the following reliefs:
“1. A declaration that the plaintiff is the lawful allotee, owner or person with sufficient interest in the 3 bedroom flat known and addressed as house No.1,362 Road, FHA Estate Phase 111, Kubwa Abuja.
- A perpetual injufnction restraining the defendant, his agent(s), servant(s), privy(ies) assigns(s) or anyone claiming through him or howsoever called from trespassing or howsoever interfering with the plaintiff’s possession (actual or constructive) or any other, from the enjoyment of the flat described in (1) above”.
On the same date it issued its writ of summons, the plaintiff filed an application on notice pursuant to Order 8 rule 7 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 1990 praying for the following:
“1. An order of interlocutory injunction restraining the defendant/respondent, his agent(s) servant(s), privy(ies) or any other person(s) however so called from trespassing, renovating, transferring alienating, mortgaging, changing, obstructing the possession thereof or interfering with the plaintiff’s light of peaceful enjoyment and possession of the 3-bedroom flat known and addressed as house No.1 along 362 Road, 3rd Avenue, Kubwa-Abuja pending the determination of the substantive suit.
- And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.”
In the usual manner, the plaintiff filed an affidavit in support of the application. The defendant later filed a memorandum of appearance to the writ. On 21st June, 2001, the defendant filed an application on notice praying for the following:
“1. An order striking out the name of the defendant/applicant from the writ of summons issued by the plaintiff/respondent herein on the 10th day of May, 2001 on the grounds:
- that the writ and the accompanying motion on notice dated 10th day of May (sic) 2001 disclose no cause of action against the defendant/applicant.
- that the writ is embarrassing, scandalous and vexatious.
- that issuance of the writ is an abuse of the process of the court.
- An ORDER that even if all the facts contained in the writ and motion on notice are admitted, they still do not DISCLOSE ANY CAUSE OF ACTION against the defendant/applicant herein.
- And for such order or further orders as this Honourable Court may deem fit to make in the circumstance.”
The defendant filed an affidavit in support of the application.
The plaintiff on 31/7/2001 filed a counter-affidavit. The trial Judge, Kuti, J., heard the two applications, that is, the one by the plaintiff and the other by the defendant together. On 2/8/200 1, the lower court delivered one ruling which covered both applications. It dismissed the application by the plaintiff. In the application by the defendant, the lower court struck out the name of the defendant from the suit. It then made an order in these words:
“This court hereby orders the parties to go back to Lagos to the Federal High Court to continue with the case which happens to be the forum convenience in this matter. It is a matter under Company and Allied Matters.”
The plaintiff was dissatisfied with the two rulings of the lower court. It has brought this appeal against them. In the appellant’s brief filed, the issues for determination in the appeal were identified as the following:
“2.1. Whether the learned trial Judge was correct in striking out the name of the defendant/respondent off suit No. FCT/HV/CV/390/2001?
2.2. Whether the learned trial Judge was correct when he ordered that the parties should go to the Federal High Court, Lagos to continue with the case purportedly before that court?
2.3. Whether the learned trial Judge was correct when he dismissed motion No. M/755/2001 (the appellant’s motion) without considering it on the merit.
2.4. Whether the trial Judge was correct in refusing to hold that the uncontradicted affidavit evidence of the applicant (now appellant) is deemed to represent the true and correct state of facts?
2.5. Whether the learned trial Judge was correct in holding that motion No. M/755/2001 is an abuse of court process embarrassing and vexatious?”
The respondent’s issues are these:
“2.1. Whether the learned trial Judge was wrong in holding that the respondent was not a proper party to be sued in the circumstance of this case and whether the determination thereof is enough to conclude this appeal.
2.2. Whether the appellant’s statement of claim discloses a reasonable cause of action.”
I shall be guided in this judgment by the appellant’s issues. I intend to consider together all appellant’s issues raised. I have earlier set out the orders which the defendant sought from the lower court by his application. The affidavit in support of the application in full reads:
“1. That I am a legal practitioner in the law firm of Oditah, Adebiyi & Co., counsel to the defendant/applicant.
- That I am therefore well aware of and familiar with all the facts to which I now depose to, the same having being derived from my first hand knowledge which has come to me personally during the normal course of my duties, or otherwise from information given to me by the defendant/applicant”.
- That I am duly authorised by both my employers and the defendant/applicant to make and depose to this affidavit.
- That on the 17th day of August, 1994 the plaintiff/respondent in this case, through one Mrs. Chris Anyanwu, its Managing Director, wrote a letter to the defendant/applicant offering 4,108,944 shares in the plaintiff/respondent at N2.00 (Two naira each) to the defendant/applicant. Now shown to me and marked exhibit AUV 1 is a true copy of the letter.
- That the defendant/applicant in this case did not subscribe to the shares but Abu Umar Ventures Limited of which the defendant/applicant is a Director accepted the offer and paid to the plaintiff/respondent the sum of N2.054,472.00 (Two Million, Fifty Four Thousand Four hundred and Seventy Two Naira).
- That when the plaintiff/respondent made no allotment of all or any of the shares subscribed to by the aforesaid Abu Umar Ventures Limited our law firm rescinded and repudiated the contract for the subscription of shares by our letter of 29th Day of March, 1995 and formally demanded payment of the N2,054,472.00 (Two Million, Fifty Four Thousand Four Hundred and Seventy Two Naira) plus interest at the rate of 21% per annum until the amount is paid. Now shown to me and marked exhibit AUV2 is a true copy of the letter.
- That further to the repudiation stated in paragraph 6 hereof, we then filed an action against the plaintiff/respondent in this case at the Federal High Court Ikoyi, Lagos as suit No. FHC/L/CS/477/95 dated 2nd day of May, 1995, claiming amongst other claims a repayment of the N2,054,472.00 (Two Million, fifty Four Thousand Four Hundred and Seventy Two Naira) plus interest at the rate of 21% per annum until the amount is paid.
- That whilst the case was on at the Federal High Court Ikoyi, Lagos, on the 5th Day of December, 1996, the plaintiff/respondent in this case through their Solicitors (Ricky Tarfa & Co.) informed the court of their willingness to settle the matter out of court and the Honourable Justice Odunowo proceeded to adjourn the matter to the 25th Day of March, 1997 to report on the settlement.
- That Ricky Tarfa & Co. had, prior to the event that took place in the court as stated in paragraph 8 of this affidavit, written to our law firm on the 3rd Day of December, 1996 that their client (the plaintiff/respondent in this case) would like to meet with us to propose a settlement of the matter out of court. Now shown to me and marked exhibits AUV3 is a true copy of the letter.
- That we held series of meeting after which Ricky Tarfa & Co. then wrote a letter to us dated 9th Day of January, 1998 offered the property in this action to Abu Umar Limited. Now shown to me and marked exhibits AUV4 is a true copy of the letter.
- That the defendant/applicant herein is not the proper party to this action, aside being a Director in Abu Umar Ventures Limited.
- That Abu Umar Ventures Limited has all the powers of a natural person of full capacity.
- That the plaintiff/respondent herein has no cause of action against the defendant/applicant, as Abu Umar Ventures Limited has by law, a legal personality separate and distinct from its Directors or members.
- That it is in the interest of justice that this application is granted.
- That I depose to this affidavit in good faith conscientiously and believing it to be true and in accordance with the OATHS ACT, CAP. 333 (FEDERAL CAPITAL TERRITORY ABUJA).”
Although the plaintiff filed a counter-affidavit, I think, in order to expose maximally the impropriety of the defendant’s application, it is better to consider the matter preliminarily without adverting to the contents of the counter-affidavit.
The summary of the depositions in the affidavit in support of the application is that the plaintiff has transferred the ownership of the property in dispute to a company called Abu Umar Ventures Ltd. in order to pay off the sum of N2,954,472.00 collected from that company by the plaintiff. It was deposed to that the defendant was a director of the said company. Assuming that those facts are true, did they lead to a conclusion that the plaintiff could not bring its suit against the defendant?
A limited liability company is a separate and distinct entity from its directors and/or shareholders. It has a personality of its own recognised by law. The claim of the plaintiff would appear to convey that the defendant was attempting to enter into the property in dispute which was in the possession of the plaintiff. The plaintiff therefore brought its suit to stop what it perceived as an unlawful act.
If it was the case of the defendant that he attempted to enter the property in dispute under an authority derived from Abu Umar Ventures Ltd. to whom it was alleged the plaintiff assigned the property, that would amount to a legitimate defence open to the defendant at the trial. In the manner, the defendant brought its application contesting the standing of the plaintiff to bring the suit, the defendant was attempting to show that the limited liability company to whom the plaintiff assigned the property was one and the same personality with him the (defendant). That clearly was a wrong notion. The defendant could only go to the property in dispute, on the authority of the limited liability company if as the defendant alleged the property was assigned to the company.
Clearly therefore, this was not a question of locus standi. It only enables the defendant to raise a special defence.
The defendant ought to have realised that to be able to maintain a suit in trespass, all that a plaintiff needs to have is possession. A plaintiff may not be the owner of the property. His possession gives him the right to maintain an action in trespass against anyone who cannot show a better title. See Onyekaonwu v. Ekwubiri (1966) 1 All NLR 32; Aromire v. Awoyemi (1972) 2 SC 1; Amakor v. Obiefuna (1974) 3 SC 67.
In the manner the defendant brought the application to strike out plaintiff’s suit, he was raising ajus tertii that is, that the property in dispute belonged to a third party. The defendant cannot do this.
See Anukanti v. Ekwonyease (1978) 1 SC 37.
There is yet a procedural reason why the defendant could not properly bring the application he brought. Order 24 rules 1,2 and 3 of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) provide:
“1. No demurrer shall be allowed.
- Any party shall be entitled to raise by his pleading any point of law and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
Provided that by consent of the parties or by order of the court or a Judge on the application of either party, it may be set down for hearing and disposed of any time before the, trial.
- If, in the opinion of the court or a Judge, the decision of the point of law substantially disposes off the whole action or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or Judge may thereupon dismiss the action or make such other order therein as may be just.”
At the time the defendant brought the application to strike out plaintiff’s suit, the plaintiff had not yet filed its statement of claim.
So, the true nature and essence of plaintiff’s claim had not been disclosed beyond the fact that the defendant went into a property which the plaintiff alleged was in its possession. It is a correct statement of the law, that the question of jurisdiction may be raised at any stage of the proceedings but the question which the defendant raised was not jurisdictional. It is in the nature of a legal defence which requires to be supported by evidence to succeed. Without waiting for pleadings to be exchanged, the defendant asked that the plaintiff’s suit be struck out. The defendant clearly was raising a demurrer which under Order 24 rule 1 of the relevant court rules reproduced above, he is not permitted to do. The defendant should have waited for the plaintiff to file, or deliver a statement of claim, and he should then file a statement of defence. If it was perceived that the defence raised could lead to the claim being terminated without the need for full trial, the defendant could then under rules 2 and 3 of Order 24 move that the point of law raised be first disposed of before trial.
The lower court was clearly in error to have entertained the defendant’s application. It should have struck out the said application. As it was the facts deposed to in support of the defendant’s application that the lower court relied upon in coming to the conclusion that the plaintiffs application be dismissed, the conclusion I arrive at is that the order dismissing plaintiff’s application was wrongly made.
The plaintiff by its application had sought an order to restrain the defendant from trespassing on the property in dispute which was in plaintiff’s possession. The prayer was sought pending the determination of the suit. Paragraphs 1to 4 of the affidavit in support of the application read:
“1. I am a Litigation Clerk in the law firm of LARRY S. & Co. of counsel to the plaintiff/applicant by virtue of which fact I am conversant with the facts deposed hereto.
- That I have the authority both of the applicant and of my employers to deposed to this affidavit.
- That Chris Anyanwu, the Managing Director of the applicant company (Zest News Ltd.) informed me in Chambers on 6/5/01 at about 1.30pm and I verily believe the following to be true:
(a) that the applicant is the allottee of a 3-bedroom flat known and addressed as House No. 1,362 Road, 3rd Avenue, Kubwa – Abuja vide a Federal Housing Authority Letter of allocation dated 17/8/94 with reference number FHA/LEM/FCT/KB/PH.III/3BB. (A copy of the said allocation letter is hereby attached and marked exhibit ‘AA’).
(b) that staff of the applicant company are currently resident in the said flat.
(c) that on or about 27/4/01 while the occupants of the house were away to work, persons claiming through the respondent encroached into the compound of the flat in a bid to carry out renovation/restructuring work on it and actually did some work.
(d) that the occupants who are still in occupation resisted them from further subsequent work.
(e) that the respondent is threatening to continue with the work and resist the occupants force for force.
(f) that FHA houses are proto-type houses that cannot be restructured without permission.
(g) that restructuring work in the house with the occupants in it can cause irretrievable injury to the occupants in that death can arise from it.
(h) that if a part of the house is pulled down and no physical injury occurs, they will suffer psychological truama arising from the fact of becoming suddenly homeless, as the house will no longer be habitable.
(i) that the applicant undertakes to pay damages to the respondent if its suit is found to be frivolous at the end of the day.
- That I swear to this affidavit believing its contents to be true and correct to the best of my knowledge and information.”
The defendant did not file a counter-affidavit contesting the truth of the above depositions. When the depositions in an affidavit are unchallenged, the court is entitled to rely on them as the truth and act upon them. See Otu v. INEC (1999) 5 NWLR (Pt.602) 250; Ayoola v. Baruwa (1999) 11 NWLR (Pt.628) 595. In the above disposition, it was alleged that the plaintiff was the allotee of the property; that plaintiff’s staff were occupying the property and that the defendants agents encroached on the property. With these facts, unchallenged as they were, the plaintiff, in my view was entitled to an interlocutory injunction restraining the defendant from further encroaching on the property.
I am unable to understand why the trial Judge ordered the parties to go back to the Federal High Court, Lagos. The issues raised before him did not at that stage justify the making of such an order. As I observed, pleadings had not been filed. The defendant had not shown the basis of his authority to enter the land in the possession of the plaintiff. The application filed by the defendant was not in the manner recognised by the court rules for bringing to the attention of the court the substance of the defendants defence.
The plaintiff’s application in my view is not embarrassing or vexatious.
Neither could it amount to an abuse of the process of the court.
It was not shown that the defendant was a party to the proceedings at the Federal High Court. So, where did the abuse of court arise from?
In the final conclusion, I make the following orders. I set aside the ruling delivered by Kuti, J. on 2/8/2001 covering the two applications before him. In its place I make the following orders:
- The defendant, his agents and or servants are restrained from trespassing on the property in dispute or obstructing the possession by the plaintiff of the said property pending the determination of the suit.
- The defendant’s application filed on 21/6/01 praying that plaintiff’s suit be struck out is struck out.
- I award N5,000.00 costs to the plaintiff.
ZAINAB ADAMU BULKACHUWA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, OGUNTADE, JCA. I agree that the appeal has merit and should be allowed. I allow it and abide by all consequential orders in the lead judgment including orders as to costs.
ALBERT GBADEBO ODUYEMI, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my Lord OGUNTADE, JCA. His Lordship has adequately dealt with the matters which call for consideration in the appeal.
I adopt the reasonings in the lead judgment as mine.
In the event, I allow the appeal.
I abide by the consequential orders contained in the judgment as well as the order in respect of costs.
- Larry, Esq.For Appellant
Adetoun Adebiyi [Mrs.]For Respondent