MALLAM TANKO WANZAMI VS ALHAJI ISA SALISU

CORAM

PARTIES

MALLAM TANKO WANZAMIMALLAM GARBA JANZAMA APPELLANTS

ALHAJI ISA SALISU MALLAM ABUBAKAR MUHAMMED BARWA TRADAKADUNA SOUTH LOCAL GOVERNMENT RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The 1st Respondent herein, Alhaji Isa Salisu, as Plaintiff, claimed against the 2nd Respondent herein, Mallam Abubakar Muhammed, one Alhaji Tanko Wanzami, not the Appellant herein, and the 4th Respondent herein, Kaduna South Local Government, as 1st to 3rd Defendants, a declaration of title over a piece of land measuring 50 feet by 100 contained in Certificate of Occupancy No 028303, general and special damages against the 1st Defendant in the sum of N150,000.00 amongst other reliefs. The 2nd Respondent herein and the said Alhaji Tanko Wanzami, as 1st and 2nd Defendants in the suit, filed a statement of defence and counterclaim for a declaration that the 2nd Defendant is the legal and rightful owner of a piece of land. The 1st Respondent thereafter filed a motion on notice praying the lower Court to dismiss the suit as it constitutes an abuse of process. The lower Court took arguments on the application of the 2nd Respondent and granted the application in a ruling delivered on the same day and dismissed the case of the Appellants. Being dissatisfied with this decision, the Appellants have appealed.

HELD

Appeal allowed

ISSUES

1. Whether the lower Court was correct in its finding that the action of the Appellants in Suit No KDH/KAD/520/2003 amounted to an abuse of process in the circumstances of this case.?

2. Whether it was improper for the lower Court to have entertained the second Respondent’s application to strike out the suit as an abuse of process without first hearing and determining the Appellants’ motion for consolidation?

RATIONES DECIDENDI

NOTICE OF APPEAL-CONTENT OF A NOTICE OF APPEAL AS CONTAINED IN THE RECORD OF APPEAL

“The notice of appeal contained in the records of appeal carries the name and signature of the Counsel to the Appellants and it is trite law that the records of appeal and its contents are binding on the parties, Counsel and on the Court. Therefore neither the parties nor the Counsel or an appellate Court can read into the record what is not there and they cannot also read out of the record what is there. They must read the record in the exact content and interpret it” PER ABIRU JCA

NOTICE OF APPEAL-IMPORTANCE OF A NOTICE OF APPEAL

“It is the notice of appeal in the records of appeal that governs and not the copy served on the second Respondent” PER ABIRU JCA

RIGHT OF PARTIES-EXERCISE OF RIGHTS OF PARTIES

“Where a party to a suit is, by law, given the option or choice of exercising his right by different ways, his adversary cannot prescribe the particular method by which the party must exercise his right and he cannot complain that there is an abuse of process if the party exercises his right in any of the permitted ways”. PER ABIRU JCA

ABUSE OF PROCESS-MEANING OF ABUSE OF PROCESS

“Abuse of process is a concept; it is an idea or a general notion formed by generalization from particular examples. It is a concept that is imprecise. It involves circumstances and situations of infinite variety and conditions.” PER ABIRU JCA

GROUND OF APPEAL-WHERE ERROR OR MISDIRECTION IS IDENTIFIED, WHETHER IT ROBS THE APPELLANT OF HIS RIGHT OF APPEAL

“Once the error or misdirection complained of is identified and properly oriented in a ground of appeal, the fact that the particulars to the ground are argumentative, repetitive or narratives is not sufficient to deny an appellant his right of appeal.” PER ABIRU JCA

COURT-PRINCIPAL DUTY OF A COURT

“The principal duty of a court is to do justice” PER ABIRU JCA

GROUND OF APPEAL- ESSENCE OF PARTICULARS OF ERROR IN LAW

“it is trite law that the essence of particulars of error in law is to project the reason for the ground of appeal in point and that as such the fact that a particular or the particulars to a ground of appeal are inelegantly drafted does not invalidate the ground from which it flows” PER ABIRU JCA

GROUND OF APPEAL-WHEN IS A GROUND OF APPEAL COMPETENT

“The law is that a ground of appeal that arises from the judgment of a court is competent even if it does not challenge the decision of the court”. PER ABIRU JCA

ABUSE OF PROCESS-NATURE OF AN ABUSE OF COURT PROCESS

“An abuse of process does not lie in the right to use a judicial process but rather in the manner of the exercise of the right. It consists of the intention, purpose or aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; it is the inconveniences and inequities in the aims and purposes of the action” PER ABIRU JCA

ACADEMIC QUESTIONS- WHETHER COURTS CAN RESOLVE ACADEMIC QUESTIONS

“It is not in the habit of Court to entertain and resolve academic questions” PER ABIRU JCA

SUBJECT MATTER OF A SUIT- WHERE THE SUBJECT MATTER OF SUITS IN LAND MATTERS CANNOT BE SAID TO BE THE SAME

“It is trite that where the subject matter in the earlier suit was a smaller area of land and the subject matter in the later suit was a much larger parcel of land, the subject matter of the two suits cannot be said to be the same”. PER ABIRU JCA

CASES CITED

Abubakar Vs Bebeji Oil and Allied Products Ltd (2007) 18 NWLR (Pt 1066) 319Ali Vs Albishir (2008) 3 NWLR (Pt 1073) 94,Anwoyi Vs Shodeke (2001) 6 NWLR (Pt 709) 321Apapa Vs Independent National Electoral Commission (2012) 8 NWLR (Pt 1303) 409Best (Nig) Ltd Vs Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt 1239) 95Biariko Vs Edeh-Ogwuile (2001) 12 NWLR (Pt 726) 235.Commissioner of Police Vs Okoye (2012) 14 NWLR (Pt 1320) 396Dakolo Vs Rewane-Dakolo (2011) 16 NWLR (Pt 1272) 22.Dokubo Vs Omoni (1999) 8 NWLR (Pt 616) 647George Vs Omokhodion (2011) 15 NWLR (Pt 1269)145Igbeke Vs Okadigbo (2013) 12 NWLR (Pt 1368) 225Jadesinmi Vs Okotie-Eboh (1986) 1 NWLR (Pt 16) 264,Jimoh Vs Starco (Nig) Ltd (1998) 7 NWLR (Pt 558) 523,Messrs NV Scheep & anor Vs The MV ‘S Araz’ & anor (2000) 15 NWLR (Pt 691) 622 at page 664New Nigeria Bank Pic Vs Imonikhe (2002) 5 NWLR (Pt 760) 294Nwaigwe Vs Federal Republic of Nigeria (2009) 16 NWLR (Ptll66) 169.Ogoejeofo Vs Ogoejeofo (2006) 3 NWLR (Pt 966) 205Oguntayo Vs Adelaja (2009) 15 NWLR (Pt 1163) 150Okukuje Vs Akwido (2001) 3 NWLR Pt 700) 261R-Benkay (Nig) Ltd Vs Cadbury (Nig) Plc (2012) 9 NWLR (Pt 1306) 596Saraki Vs Kotoye (1992) 9 NWLR (Pt 264) 156,Tomtec (Nig) Ltd Vs Federal Housing Authority (2009) 18 NWLR (Pt 1173) 358.Uduaghan Vs Ogboru (2012) 1 NWLR (Pt 1282) 521Ugwu Vs State (2013) 4 NWLR (Pt 1343) 172Unity Bank Plc Vs Olatunji (2013) 15 NWLR (Pt 1378) 503 at 534 C-FShettima Vs Goni (2011) 18 NWLR (Pt 1279) 413

STATUTES REFERRED TO

CLICK HERE TO READ FULL JUDGMENT