ALHAJI ZANNA YERIMA HAMMA WABI VS ALHAJI MUKKADDAS ZANGINA
May 28, 2021ALI MOHAMMED V FEDERAL REPUBLIC OF NIGERIA
May 28, 2021STEPHEN TERI VS GAUNO AUGUSTINE
(2021) Legalpedia (CA) 86681
In the Court of Appeal
HOLDEN AT GOMBE
Sunday, January 24, 2021
Suite Number: CA/G/325/2018
CORAM
JUMMAI HANNATU SANKEY
UZO I. NDUKWE-ANYANWU
JAMES GAMBO ABUNDAGA
STEPHEN TERI || GAUNO AUGUSTINE
AREA(S) OF LAW
APPEAL
Land Law
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Claimant/Respondent sought before the High Court of Borno State, a declaration that both Claimant and the Defendant are co and lawful owners of the house No. B121 Ibrahim Taiwo Housing Estate; an order restraining the Defendant or whosoever from claiming the sole ownership of the house excluding the Claimant’s co – rights and ownership over the property; an order directing the Defendant to refund the sum of N360, 000 (Three Hundred and Sixty Thousand Naira), being half of the amount paid by the Claimant to the housing authority; and Perpetual injunction restraining the Defendant by himself or privies, agent or servant from trespass into his own portion of the house. In the trial, the Respondent testified and called one witness by name Mairo Ali. Three documents were tendered and admitted in evidence. The Appellant testified in his defence and tendered nine documents, which were admitted in evidence. At the close of the trial, the court entered judgment in favour of the Respondent. Not satisfied with the decision of the court, the Appellant has filed the instant appeal.
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HELD
Appeal Allowed
ISSUES FOR DETERMINATION
Whether the Attorney General of Borno State and Ministry of Housing and Rural Electrification Borno State sued as 2nd and 3rd defendants at the lower Court are necessary parties in this suit in view of the facts that both appellant and respondent traces their root of title over house No. B121 to them and all exhibit ST1 to ST10, and GA3, were issued by them. Assuming answer to issue (1) above is in affirmative. Whether the respondent is privy to judgment in suit No:- BOHC/MG/CV/53/15 delivered on the 17th March, 2016 i.e. exhibit ST10. Whether by virtue of exhibit ST10, (the judgment of high court of justice No.1, Maiduguri, Borno State) delivered on 17th March, 2016 over house No. B121 between appellant, the attorney general of Borno State, and Ministry of housing and rural Electrification Borno State, the claimant/respondent case is caught by doctrine of estoppel and or an abuse of court process which robbed the lower court of jurisdiction to this case. Whether by virtue of glaring evidence of defendant/appellant and exhibit GA3, ST1 to ST10, admitted in evidence before the lower court the appellant has exclusively proved his title over house No. B121 on the balance of probability? Whether the lower court was right in holding that respondent has proved his case and is entitle to jointly share house No. B121 Ibrahim Taiwo housing estate Maiduguri, with the appellant.
RATIONES
PARTIES TO AN ACTION – WHO IS A PROPER/NECESSARY PARTY TO AN ACTION?
“In the case of Amaechi vs. Governor of Rivers State & Ors (2017) LPELR-43065 (CA), the Court held: “The law is well settled that, a person will be a proper and necessary party when his or her joinder as a party to the action will enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the action. Therefore, the interest of the Appellant can not be said to be oblique in the instant matter, rather, his interest is directly in issue in ensuring that justice is done in the subject-matters of the inquiry to be conducted by the 3rd Respondent. This is our firm view and we so hold. See the cases of: (1) Green v. Green (1987) NSCC P. 115; (2) Ede v. Nwidenyi (1988)12 S.C. (Pt.3) p.12 and (3) Carrena v. Akinlase (2008)14 NWLR (Pt.1107) p.262.” Per OMOLEYE ,J.C.A ( Pp. 97-98, paras. E-C ).
PROPER/NECESSARY PARTY – DEFINITION OF A PROPER/NECESSARY PARTY TO A SUIT
“The case of Global West Vessel Specialist (Nig) Ltd vs. Nigeria NLG Ltd & Anor (2017) LPELR-41987 (SC) also presents another view of who is a proper/necessary party to a suit. Who is a proper/necessary party to a suit, was thus defined in that case: “It has long been held that proper parties are those who though not interested in the plaintiff’s claim, are made parties for some good reasons, for example, in an action instituted to rescind a contract, any person who was active or concurring in the matters which gave the plaintiff the right to rescind, is a proper party to the action. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceeding could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. See Chief Abusi David Green v. Chief (DR) E. T. Dublin Green (1987) NWLR (pt. 61) 481 (1987) LPELR SC206/1986; Amon v. Raphael Tuck & Cons (1956) 1 WB 357; Re Vandervills Trust (1971) A.C. 812; Re Vandervelle (1969) 3 All ER 497.” Per ARIWOOLA ,J.S.C ( Pp. 31-32, paras. D-B ). See also T. Delak Distribution Service Ltd & Anor vs. Ugbowanko (2018) LPELR-46480 (CA), per Garba, JCA (Pp. 28 – 29, paras F – C)”.
The definition of who is a privy in the case of Agbogunleri vs. DEPO & Ors (2008) LPELR-243 (SC) is apt. In the said case, the Supreme Court defined privy thus: “But, who is a privy. In Arabio v. Kanga (1932) 1 WACA 253 at p. 254, a privy was defined as that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or persons having interest in property.” Per MUHAMMAD ,J.S.C (P. 23, paras. C-D). See also the case of Makami vs. Umaru (2013) LPELR-20799 (CA), Pp. 12 – 13, paras G – B.
PLEA OF ESTOPPEL – CONDITION PRECEDENT FOR A PLEA OF ESTOPPEL TO AVAIL A PARTY
“In the case of Dorsu & Ors vs. Eyegbangharen & Ors (2019) LPELR-48300 (CA), the Court held: “it is settled law that estoppel per rem judicatem is usually pleaded as a defence. And where a plaintiff fails to file a reply in respect of a plea of estoppel per rem judicata, the failure is treated as a denial of the previous suit or suits pleaded. See Potter v. Haruna Bako Kolo (1993) 9 NWLR (Pt. 317) 254 and Alhaji Madi Mohammed Abubakar v. Bebeji Oil and Allied Products Ltd (supra). In the case of Clay Industries (Nig.) Ltd. V. Adeleye Aina & Ors. (1997) 7 SCNJ491 at 509, Per Iguh, JSC, the Supreme Court stated the law in respect of estoppel succinctly as follows:- “It is a general principle of law that estoppel must be pleaded before the trial Court .” See also the cases of Obanye v. Okwunwa (1930) 10 NLR 8; Sowa v. Amachree (1944) 10 WACA 164.” Per ADUMEIN, JCA (Pp. 17 – 18, paras. F –D ). Having not pleaded estoppel, same cannot avail the Appellant.
ABUSE OF COURT PROCESS – DEFINITION OF ABUSE OF COURT PROCESS
Let me adopt the definition of abuse of Court process as given in the case of Ahmed Saka vs. Mr. Pelumi Adeboye & Anor (2009) LPELR-4920 (CA) where Bage, JCA (as then was) defined what constitutes abuse of Court process thus: “On the meaning and connotation of abuse of Court process, this Court in the case of Pam V. A.N.P.P. (2008) 4 NWLR (pt. 1077) 219 at 231 Ratio 16 provides thus:- Abuse of Court process consist of the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice, such as instituting actions between the same parties simultaneously in different courts even though on different grounds. An abuse of Court process may lie in both a proper and improper use of judicial process in litigation. The employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice, this will arise in instituting a multiplicity of actions on the same matter between the same parties even where there exists a right to institute an action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right parse. See :- Shell Trustees (Nig.) Ltd. V. Imani & Sons Ltd (2000) 6 NWLR (Pt. 662) 139 at 660; Okorodudu V. Okorodudu (1977) 3 SC 21; Oyebola V. Esso West Africa Inc. (1966) 2 SCNLR 35; Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156.” Per BAGE, JCA (Pp. 20 -21, paras. D – E).
STATUTES REFERRED TO
High Court of Borno State (Civil Procedure) Rules, 2017|
COUNSEL
1.M. M. Abdullahi, Esq. for the Appellant.|2.A. Abdul-Rahman, Esq. for the Respondent.|
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