ZENITH BANK v. JOHNSON A. AKINNIYI

CORAM

T.N.ORJI ABADUA- JUSTICE COURT OF APPEAL

SONTOYE DENTON-WEST – JUSTICE, COURT OF APPEAL

MOHAMMED AMBI-USI DANJUMA -JUSTICE, COURT OF APPEAL

T.N.ORJI ABADUA- JUSTICE COURT OF APPEAL

PARTIES

ZENITH BANK APPELLANTS

JOHNSON A. AKINNIYI RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Defendant/Appellant applied for an order dismissing suit No: AK/105/2013 at the lower court on the ground that it constitutes abuse of Court process because the subject-matter and the parties are the same with the subject- matter of suit No: AK/350/2012 that is pending in the same court. After considering the affidavit evidence of both parties, the lower court dismissed the application on the grounds that suit No: AK/105/2013 is not an abuse of court process. Dissatisfied with the decision of the trial court, the Appellant filed a notice of Appeal to the Court of Appeal.

HELD

Appeal Dismissed

ISSUES

Whether the learned trial judge was right in holding that Suit No: AK/105/2013 does not constitute an abuse of court process having held that the Respondent filed two separate suits No. AK/350/2012 and AK/105/2013 on the same subject matter, issues and between the same parties.

RATIONES DECIDENDI

BURDEN OF PROOF – THE BURDEN OF PROOF IS ON HE WHO ASSERTS

“In our adversary system of administration of justice, the burden of proof is on the party who asserts a fact to prove same, for he who asserts must prove. See: Daodu v. N.N.P.C (1998) 2 NWLR (Pt.538) 355, Itauma v. Akpe-Ime (2000) 7 SC (Pt.II) 24, Braimah v. Abasi (1998) 13 NWLR (Pt.581) 167 and Kala v. Potiskum (1998) 3 NWLR (Pt.540).”PER J.S ABIRIYI, J.C.A.

ADMISSIBILITY OF PUBLIC DOCUMENT – THE ONLY ADMISSIBLE SECONDARY EVIDENCE OF A PUBLIC DOCUMENT IS A CERTIFIED TRUE COPY OF THE DOCUMENT

“It is the law that the only secondary evidence of a public document admissible is a certified true copy of the document. It is immaterial whether the secondary evidence is for use in an interlocutory application or a substantive suit. It remains inadmissible in both situations unless it is certified. See: Fawehinmi v. I.G.P. (2000) FWLR (Pt.12) 2015 and Delta State House Of Assembly Ors v. PDP & 3 ORS (2014) LPELR 22808.” PER J.S ABIRIYI, J.C.A.