Malam Tanko D. Usman V. Samuel Baba (2004)

LawGlobal-Hub Lead Judgment Report

JEGA, J.C.A.

The appellant as plaintiff instituted this action at the High Court of Kaduna State, Kafanchan Judicial Division on the 13/2/95 in suit No. KDH/KAF/5/95 asking for declaration of title over a plot of land measuring 100ft x 100ft, situated on the Kachia – Kaduna public highway bounded to the west by Camp Road, Sabon Gari Kachia, bounded to the east by a plot occupied and used by ECWA Health Clinic, Kachia and bounded to the North by plot No.1 Camp Road, Sabon Gari Kachia covered by certificate of occupancy No.KCH/A/000289 issued on 17/02/86 by Kachia Local Government of Kaduna State for both residential and commercial purposes. The appellant also asked for an injunction, special and general damages.

The respondent through his counsel filed a memorandum of conditional appearance on the 17/2/95 and subsequently filed a motion dated 15/8/95 praying the court to strike out the suit for want of jurisdiction as the same matter had been adjudicated upon and is a subject of a pending appeal before this court, and was the subject of two other suits filed before the same High Court between same parties. The motion was supported by an affidavit and exhibits showing that four different suits had been filed and pending before the Court of Appeal, Kaduna and the High Court involving same parties and over the same subject matter. The appellant did not file a counter-affidavit challenging the depositions in the affidavit in support of the respondent’s motion. On the 20/3/96, the appellant’s motion to file his statement of claim was heard and granted and his attached statement of claim was deemed filed and served. Thereafter, on the same date, the court proceeded to hear the respondent’s motion raising the issue of lack of jurisdiction of the trial court to hear the suit. The appellant’s counsel did not object to the hearing of the motion but opposed same on points of law. The main ground on which the appellant opposed the motion was that the motion itself offended Order 23 of the High Court (Civil Procedure) Rules applicable in Kaduna State and which provision abolished demurrer. He conceded the subject matter in suit Nos. KDH/KAF/24/94 and KDH/KAF/64/93 were same or identical with the subject matter in suit No. KDH/KAF/5/95 which is the subject of this appeal but contended the parties were different. The trial court found that in the four suits filed on the subject matter the respondent was a party and both the present appellant and respondent are parties to the suit now pending on appeal to this Honourable Court. The lower court then ruled that the issue of jurisdiction was so important and fundamental that it should be determined timeously and at the earliest opportunity and need not to be raised in the statement of defence first before it is determined, the trial court, declined jurisdiction to proceed to hear and determine suit No. KDH/KAF/5/95 and struck-out same.

Dissatisfied with the said ruling of the trial High Court, the appellant appealed to this court as per the notice of appeal dated on the 17th day of July, 1996. We took this appeal on the 19th May, 2004 learned counsel to the appellant adopted and relied on his brief of argument filed on the 5th July, 2001 and also his reply brief deemed filed and served on 23rd January, 2003 and urged the court to allow the appeal. Learned counsel to the respondent adopted and relied on his brief of argument deemed filed on the 26th September, 2002 and urged us to dismiss the appeal. This appeal is based on four grounds of appeal and from the four grounds of appeal the appellant’s counsel distilled three issues for determination. The issues are as follows:

“1. Whether the trial court adopted the correct procedures in its consideration of the challenge of its jurisdiction?.

Whether the refusal of the plaintiff to file a counter-affidavit to refute the averments in the affidavit supporting the motion which challenged the trial court’s jurisdiction, left the said court with no option but to take the averments as true and admitted?.

Whether the trial court properly raised the issues of:

(a) disorganisation or change of the name or description of the subject matter in dispute;

(b) whether the disorganization or change was carried out successfully or not;

(c) the popular name by which the building has been known in other suits;

(d) the claims and parties in other suits;

(e) a chameleon, its characteristics, and effects;

(f) splitting a plot into many plots;

(g) a disputed hotel; and

(h) hotel purchased by the defendant from Union Bank of Nigeria Plc?.

(i) suo motu and decided the issues in its judgment without the parties’ reacting to them,”

Learned counsel to the respondent adopted the issues for determination formulated by the appellant.

Issue No.1 – Whether the trial court adopted the correct procedures in its consideration of its jurisdiction?. Learned counsel to the appellant in his submissions as contained in his brief of argument contends that in a case commenced by writ of summons in which the statement of claim has been filed and duly served, it is the statement of claim alone that must be looked at when determining whether or not the court has jurisdiction to proceed to hear the case reference made to N.A.B. Kotoye v. Mrs. P.M. Saraki & Anor. (1994) 7 NWLR (Pt.357) 414, (1994)7-8 SCNJ (Pt.111) 524 at 559. Further, counsel submitted that a party in a case, who relies on estoppel, as the respondent did in the trial court, must specially plead it in his statement of defence, but cannot raise such point of law by an application supported by affidavit reference made to Order 23 rules D1 and 2 of the Kaduna State High Court (Civil Procedure) Rules, 1987 sections 86 and 87 of the Evidence Act, Cap. 112, LFN 1990; Chief Sampson Okon Ito and Anor. v. Chief Okon Udo Ekpe & Anor. (2000) 3 NWLR (Pt.650) 678, (2000) 2 SCNJ 91. In the premises, counsel to the appellant urged us to answer issue No.1 in the negative, that is to hold that the trial court did not adopt the correct procedure in its consideration of the challenge of its jurisdiction.

In his reply to issue No.1, learned counsel for the respondent submits that the respondent raised the issue of lack of jurisdiction of the trial court to hear this suit on the basis that multiple suits had been filed by the appellant against the respondent over the same subject matter. The objection was by way of a motion supported by an affidavit, this attitude of the appellant, the respondent contended amounted to abuse of court process. Learned counsel for the respondent contends that it is not correct that where the issue of jurisdiction is raised, only the statement of claim is relevant in determining same, rather both the writ and statement of claim are to be considered reference made to Ndiazu Ltd. v. Namson Fishing Enterprise (2000) 7 NWLR (Pt. 664) 214; Raimi Akande v. Busari Alagbe (2000) 15 NWLR (Pt. 690) 353. Learned counsel argues that though it is settled law that a court in ‘determining’ whether or not it has jurisdiction in an action may refer to the claim by the plaintiff as endorsed in the writ he filed as well as the statement of claim. The factors and documents to consider differ when the lack of jurisdiction is based on abuse of court process by way of multiple suits. That it is obvious the plaintiff will not raise such issue in his claim as it will be self-defeating. Since his intention is mala fide in the first place, he will not disclose the existence of other suits over the same subject matter involving him and the defendant, it is therefore the duty and responsibility of the defendant to raise the issue of abuse of court process and to show material by way of affidavit and documentary evidence (in the form of exhibits) and convince the court that there are multiple suits over the same issue and instituted by the plaintiff involving the same parties. And the intention of the plaintiff must be mala fide and such proceeding is frivolous, vexatious or oppressive. That abuse of court process is defined to mean proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. It can be abuse of legal procedure or improper use of legal process. It involves some bias, malice, deliberateness, desire to misuse or pervert the system of justice. And it arises when a party improperly uses the judicial process to the irritation and annoyance of his opponent such as instituting multiple actions on same subject matter against his opponent on same issue reference made to Alhaji Saadu Olutinrin v. Alhaji Hanafi Agaka (1998) 6 NWLR (Pt. 554) 366; Anthony Chinwuba Ani v. Odunayo Boyepe Ani (2002) 6 NWLR (Pt. 762) 166; Best Western Company Ltd. v. Sabbath Wilson Udomisor (2000) FWLR (Pt. 97) 744; Central Bank of Nigeria v. Saidu Ahmed (2001) 11 NWLR (Pt. 724) 369.

Learned counsel for the respondent contends that it is clear from the definition of abuse of court process and what it constitutes that it is a complete defence that can be raised by the defendant to challenge the competence of such action or the jurisdiction of the court to entertain same, that this the defendant has to do by way of a motion supported by an affidavit and all material documents attached as exhibits.

On the issue of res judicata and abuse of court process, counsel to the respondent submits that the doctrines of res judicata and abuse of court process look similar but they are different. In the former, the issues between the parties must have been determined to conclusion and their rights and liabilities pronounced upon. But in the latter, the mere pendency of another similar suit involving the same parties and same issues either at the trial court or appeal stage is enough to sustain the objection. That in the instant appeal the complaint of the respondent is that two similar suits had been instituted by the appellant at the High Court and another pending on appeal to this Honourable Court. These other suits are pending and amount to multiplicity of action which constitute abuse of court process. That it does not matter that the appellant had at the time the motion challenging the jurisdiction was moved, filed an application to discontinue the other suits pending at the High Court. That the appellant according to the finding of the trial court in this suit had filed an application to discontinue suit Nos. KDH/KAF/64/93 and KDH/KAF/24/94. The application had not been heard or granted before the respondent’s application for striking out the suit was heard and determined. Reference made to Alhaji Saad Olutirin v. Alhaji Hanafi Agaka (supra).

Learned counsel to the respondent submits that the appellant’s counsel has contended that the preliminary objection of the respondent was a reliance on the doctrine of estoppel that needed to be specially pleaded, that since the respondent did not do so he is caught by Order 23 rules 1 and 2 of the High Court (Civil Procedure) Rules, 1987 of Kaduna State. Learned counsel to the respondent argues that the doctrine of resjudicata is not the same with abuse of court process reference made to Nnah George Onyeabuchi v. INEC (2008) 8 NWLR (Pt.769) 417.

On the provision of Order 23 rules 1 and 3 of the High Court (Civil Procedure) Rules, 1987 of Kaduna State, counsel to the respondent contends that though this provision abolished demurrer, it does not extend to nor cover issues of jurisdiction. That the respondent by his motion asked the trial court to strike out the suit, for want of jurisdiction on the ground of multiplicity of action. It has been held that jurisdiction and demurrer are different – see Nigeria Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 7 NWLR (Pt.766) 272, (2002) 10 FWLR (Pt. 99) 1021; The Shell Petroleum v. E. N. Nwawka (2001) 10 NWLR (Pt. 720) 64; Ecu Line v. Adelekan (2001) 10 NWLR (Pt.721) 261. That jurisdiction being the threshold and lifeline for continuing proceedings objection to jurisdiction ought to be taken at the earliest opportunity if there are sufficient materials before the court before any other step is taken as any proceedings without jurisdiction is a nullity no matter how well conducted – reference made to Alhaji Bababa Abdulkadir v. Alhaji Abdulkadir Usman (2002) 8 NWLR (Pt.769) 396; Ma’aji Galadima v. Alhaji Adamu Tambai (2000) 11. NWLR (Pt. 677) 1; Sarkin Kudu Mohammad Maidawa v. Sarkin Dawaki Husaini (2000) 6 NWLR (Pt. 662) 698. Counsel submits that the trial court was right to have first taken the preliminary objection touching on jurisdiction and its power to hear the matter already pending before it in other suits and before the Court of Appeal, Kaduna. That courts have the power and duty to dismiss cases that amount to abuse of court process See Nnah George Onyeabuchi v. INEC (supra) at 441. That the counsel to the appellant referred to sections 86 and 87 of the Evidence Act but no argument is advanced on these provisions, urged the court to discountenance these provisions. Finally on issue No.1, counsel urged us to answer the issue in the positive and dismiss the appeal.

In his reply brief on points of law, counsel to the appellant submits that the respondent’s motion on notice by which he challenged the jurisdiction of the trial court was based on doctrine of resjudicata and not abuse of court process. That both the learned counsel to the respondent and the learned trial Judge had the impression that the phrase ‘abuse of court process’ was the same as ‘resjudicata’, hence, their juxtaposition of the two in both the motion on notice and oral argument by the respondent’s counsel and the ruling of the trial Judge. Further, counsel to the appellant contends that though the motion on notice in the trial court and the ruling of the trial court were based on res judicata. The respondent’s brief in this appeal is based on ‘abuse of process’ a totally new point. Learned counsel to the appellant argues that the respondent by his brief of argument in this appeal is subtly contending that the decision of the trial court should be affirmed on ground of ‘abuse of process’ other than the ground of resjudicata relied upon by the trial court without giving the mandatory notice stipulated in Order 3 rule 14(2) of the Court of Appeal Rules thereby rendering the respondent’s brief incompetent and irrelevant in this appeal. Further, counsel to the appellant contends that for the purposes of the exercise of this Honourable Court’s powers pursuant to section 16 of the Court of Appeal Act and Order 3 rule 14(6) of the Court of Appeal Rules, the appellant’s writ of summons and statement of claim relate to the two plots of land different and distinct from No.2 Camp Road, Sabon Gari Kachia, therefore, the action of the appellant, is not defensible by either doctrines of ‘resjudicata’ or abuse of court process. Counsel urged us to allow the appeal.

Issue No.1 under consideration revolves around the procedure the court should adopt in its consideration of the challenge of its jurisdiction. In the instant appeal, the respondent has raised the lack of jurisdiction of the trial court to hear this suit on the basis that multiple suits had been filed by the appellant against the respondent over the same subject-matter. This conduct of the appellant the respondent submits, amounts to abuse of court process. The appellant has in submissions contended that in a case commenced by writ of summons, in which the statement of claim has been filed and duly served, it is the statement alone that must be looked at when determining whether or not the court has jurisdiction to proceed to hear the case. Though to a very large extent it is settled law that a court in ‘determining’ whether or not it has jurisdiction in an action may refer to the claim by the plaintiff as endorsed in the writ he filed as well the statement of claim, the factors and documents to consider differ when the lack of jurisdiction is based on abuse of court process by way of multiple suits. It is beyond doubt that the plaintiff will not raise such issue in his statement of claim as it will be sell-defeating. Since his intention is mala fide in the first place he will not disclose the existence of other suits over the same subject-matter involving him and the defendant, it therefore becomes imperative on the defendant to raise the issue of abuse of process and to show material by way of affidavit and documentary evidence in the form of exhibits and convince the court that the re are multiple suits over the same issue instituted by the plaintiff involving the same parties, that the intention of the plaintiff must be mala fide and such proceeding is frivolous, vexatious or oppressive. In the instant appeal, the facts of this case as can be gathered from the record of proceedings shows that the respondent purchased the property situate at Camp Road No.2 Sabon-Gari Kachia called Tamu, Kadara Hotel belonging to the appellant vide a public auction conducted by Union Bank of Nigeria Plc as mortgagees for a loan granted the appellant and which he was unable to repay fully. The respondent brought a motion before the district court Kachia seeking for an order of possession of the said premises and which application was heard and granted. The appellant was dissatisfied with the decision of the district court and appealed to the High Court by way of judicial review and joined his company Tamu Kadara Nigeria Ltd. as a party. The High Court dismissed the application for a review of the decision of the district court and the appellant still being dissatisfied appealed to the Court of Appeal, Kaduna and which appeal is still pending. The appellant then filed two other suits in the High Court against the respondent namely suit No.KDH/KAF/64/93 and suit No. KDH/KAF/24/94 and which later suit the appellant filed an application to discontinue. The respondent filed an application before the district court seeking the forceful ejection of the appellant from the disputed premises and which application was heard and granted and the appellant was forcefully ejected from the premises and possession of same was given to the respondent on or about the 23/10/93. From the printed record before the court, the trial Judge made the following findings:-

“Exhibit’ A’ is the auction notice of Tamu Kadara Hotel of Tamu Enterprises of No.2 Camp Road Sabon-Gari, Kachia. Exhibit ‘B’ is the copy of the judgment of the District Court Kachia granting the respondent possession of No.2 Camp Road, Kachia. Exhibit ‘C’ is the copy of the order of the Kaduna High Court dismissing the application of the appellant and another seeking to set aside the judgment of the District Court. Exhibit ‘D’ is the notice and grounds of appeal of the appellant and another, i.e., Tamu Kadara Nigeria Ltd. against the ruling of the Kaduna High Court to the Court of Appeal, Kaduna Division. Exhibit ‘E’ is the ruling of the District Court Kachia permitting the respondent to forcefully take possession of No.2 Camp Road, Kachia. Exhibit ‘F’ is the writ of summons in suit No. KDH/KAF/64/93 between Tanko D. Usman carrying on business under the name and style of Tamu Kadara Enterprises and (1) Samuel Baba (2) the Sheriff Kachia District Court (3) the Deputy Sheriff Kachia District Court. Suit No. KDH/KAF/24/94 between Tamu Kadara Nig. Ltd. and Samuel Baba though not exhibited by either party but was referred to in the respondent’s affidavit in support of his motion and the arguments and submissions of both counsel is a suit pending before the trial High Court. There is a pending motion for leave of the trial High Court to discontinue suit No.KDH/KAF/24/94 and which motion has not been moved and granted. The plaintiff, i.e., appellant in this appeal is the same as the appellant in the suit pending in the Court of Appeal, Kaduna. The co-appellant in the appeal in Re Certificate of Occupancy is the same plaintiff in suits Nos. KDH/KAF/24/94 and KDH/KAF/64/93.There are three suits pending in the trial High Court at the instance of both appellants in the suit pending at the Court of Appeal, Kaduna. In all the suits in the trial High Court and the Court of Appeal, Kaduna the appellant herein is a party. In suit No. KDH/KAF/109M/91 which originated from the District Court, Kachia in which the trial High Court refused the application of appellant and Tamu Kadara Nig. Ltd. to set aside the decision of the District Court, the issues decided was the possession and by implication the ownership of Tamu Kadara Hotel situate and being at No.2 Camp Road, Sabon-Gari Kachia. The facts that gave rise to this multiplicity of suits are not in dispute, that the respondent herein purchased Tamu Kadara Hotel situate and being at No.2 Camp Road, Sabon-Gari Kachia from Union Bank of Nigeria Plc at a public auction by the said Union Bank Plc as unpaid mortgagee. These facts were succinctly pleaded by the respondent at the District Court and the appellant was aware of this and chose not to contest the claim having lost both at the trial District Court and the trial High Court he appealed to the Court of Appeal, Kaduna and which appeal is still pending. The appellant apparently abandoned the appeal and filed multiple suits against the respondent using either his name or the name of his company Tamu Kadara Nig. Ltd.”

Now for what constitutes abuse of court process, the Supreme Court in CBN v.Ahmed (supra) at 372 ratio 1 states thus:

“Abuse of process of the court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. For instance, the relitigation of already decided issues is an abuse of court’s process, even if the matter is not strictly res judicata (Amaefule v. The State (1988) 2 NWLR (Pt.75) 156; Arobo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126) referred to and adopted.”

It is therefore clear from the definition of abuse of court process and what it constitutes that it is a complete defence that can be raised by the defendant to challenge the competence of such action or the jurisdiction of the court to entertain same. This the defendant has to do by way of a motion supported by an affidavit and all material documents attached as exhibits. In this appeal, the complaint of the respondent is that two similar suits had been instituted by the appellant at the High Court and another pending on appeal in this Honourable Court. These other suits are pending and amount to multiplicity of action which constitutes abuse of court process. It does not matter that the appellant had at the time the motion challenging the jurisdiction was moved, filed an application to discontinue the other suits pending at the High Court. The appellant according to the findings of the trial court in this suit had filed an application to discontinue suit Nos. KDH/KAF/64/93 and KDH/KAF/24/94. The application had not been heard or granted before the respondent’s application for striking out was determined. This court in the case of Alhaji Saadu Olutinrin v. Alhaji Hanafi Agaka (supra) at 375 per Abdullahi, J.C.A. held thus:

“Before I am done on this issue, I refer lastly to the most recent decision of this court in the case of Olawale v. Olanrewaju (1998) 1 NWLR (Pt. 534) at 455 where Mukhtar, J.C.A. said:

‘it is an abuse of judicial process for the plaintiff to file a notice of discontinuance so that he may have his way in a new suit’.”

In the instant case, what is being canvassed is the issue of abuse of court process which is an issue of jurisdiction, since once a court is satisfied that any proceeding before it is an abuse of court process it has the power, indeed the duty to dismiss it. That is to say that once a court is satisfied that the proceeding before it amounts to abuse of process, it has the right, in fact the duty to invoke its coercive powers to punish the party which is in abuse of its process. Such power quite often is exercisable by a dismissal of the action which constitutes the abuse. Since the issue of abuse of court process is an issue of jurisdiction it can be raised at any stage of a case be it at thetrial or on appeal, it can be raised suo motu or viva voce without any written application and once it is raised parties must be heard on it and the issue must be determined before any further proceedings in the matter. Jurisdiction being the threshold and life line for continuing proceedings, objection to jurisdiction ought to be taken at the earliest opportunity if there are sufficient materials before the court before any other step is taken as any proceedings without jurisdiction is a nullity no matter how well conducted.

Learned counsel for the appellant has contended that the preliminary objection of the respondent was a reliance on the doctrine of estoppel that needed to be specially pleaded in a statement of defence, that such a point of law cannot be raised by an application and supported by affidavit. Order 23 rules 1 and 2 of the Kaduna State High Court (Civil Procedure) Rules, 1987 provides thus:

“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, the same may be set down for hearing at any time before the trial.”

Order 23 rules 1 and 2 of the Kaduna State High Court (Civil Procedure) Rules, 1987 abolished demurrer, but it does not extend to nor cover the issue of jurisdiction. An application or preliminary objection, as in this case, seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken before the defendant files his statement of defence or without the defendant filing a statement of defence. This is because the issue of jurisdiction can be raised at any time. It is crystal clear that jurisdiction and demurrer are different. In the case of Nigeria Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 7 NWLR (Pt. 766) 272 at 296, paras. G, the Supreme Court through Uwaifo, J.S.C. held thus:-

“the tendency to equate demurrer with objection to jurisdiction could be misleading. It is a standing principle that in demurrer, the plaintiff must plead… But as already shown the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the reliefs he seeks … It does not always follow that he must plead first in order to raise the issue of jurisdiction.”

Therefore, where jurisdiction is the root of the matter and the pleading can be dismissed for lack of jurisdiction simpliciter, no useful purpose will be served by filing a defence not withstanding the rules of court. Though where a defendant is confronted with a suit that is glaringly an abuse of court process even if he has been served with a statement of claim in the matter, does not need to wait until he files a statement of defence in the matter before raising a preliminary objection on jurisdiction of the court. This is because the relevant thing(s) to be considered by the court in determining the issue of jurisdiction are the facts deposed to in affidavits, the writ of summons and the statement of claim where one has been filed and served. The statement of defence is not one of the relevant materials for that purpose. The trial court was therefore right to have first taken the preliminary objection touching on jurisdiction and its powers to hear the matter already pending before it in other suits and before the Court of Appeal, Kaduna, more so when it is settled law that the courts have the power and duty to dismiss cases that amount to abuse of court process.

The appellant’s counsel had referred to sections 86 and 87 of the Evidence Act but have not advanced any argument on these provisions, accordingly they are deemed abandoned and discountenanced.

The appellant has also in his reply brief sought to make a case for the respondent, that the respondent in his brief of argument is subtly contending that the decision of the trial court should be affirmed on grounds of abuse of court process other than ground of res judicata relied upon by the trial court without giving the mandatory notice stipulated in Order 3 rule 14(2) of the Court of Appeal Rules. It is very clear that throughout the brief of argument filed by the respondent, he did sought the decision of the trial court to be affirmed on ground of abuse of court process other than the ground of res judicata alleged to be relied upon by the trial court. It is clear from the motion on notice filed by the respondent and the ruling of the trial court that its decision was based on the issue of res judicata because the matter was litigated at the district court, the trial court and now pending before the Court of Appeal in Kaduna and abuse of court process by the filing of two other suits i.e. suits Nos. KDH/KAF/64/93 and KDH/KAF/24/94 at the trial court, therefore, it is beyond dispute that the decision of the trial court was based both on res judicata and abuse of court process. Besides, in law it is not open to the appellant to make a case for the respondent, the appellant should confine himself to his own case. In the light of the foregoing, issue No.1 is answered in the positive and is resolved against the appellant in favour of the respondent.

Issue No.2 – Whether the refusal of the plaintiff to file a counter-affidavit to refute the averments in the affidavit supporting the motion which challenged the trial court’s jurisdiction, left the said court with no option, but to take the averments as true and admitted?.

It is submitted for the appellant that where there exists no facts in an affidavit which need to be refuted by counter-affidavit, the other party in a suit need not file a counter-affidavit and the court

would not take the averment in the affidavit as true and admitted merely because no counter-affidavit has been filed. Reference made to National Bank of Nigeria Ltd. v. Are Brothers (Nig.) Ltd. (1977) 6 SC 97, (1977) NCLR 123; Royal Exchange Assurance (Nig.) Ltd. & Ors. v. Aswani ile Ltd. (1992) 3 NWLR (Pt.227) 1, (1992) 2 SCNJ (Pt.2) 346. Learned counsel to the appellant urged us to answer the second issue in the negative.

In his reply, learned counsel to the respondent submits that the respondent’s objection to jurisdiction was raised by way of motion supported by an affidavit. The affidavit raised the issue of multiple suits filed by the appellant against the respondent over the same subject matter. Annexed to the affidavit were court processes filed in those various suits to show the abuse of court process. That the facts deposed to in the affidavit narrated the genesis of the dispute on the property subject of the litigation and how the appellant and Tamu Kadara (Nig.) Ltd. joined the appeal now pending at the Court of Appeal Kaduna as parties (appellants) in that suit. All these facts deposed to and the documentary evidence by way of exhibits attached to the affidavit were not countered by the appellant. Learned counsel contends that where facts deposed to an affidavit and/or that can be deduced from exhibits attached thereto are left unchallenged and they are not self contradictory a court is entitled to believe same to be true and undisputed, that the respondent is deemed to have admitted those facts as representing the true and correct position of the matter. Reference made to Eco-Consult Ltd. v. Pancho Villa Ltd. (2000) 3 NWLR (Pt. 647) 141; Commercial Credit Lyonais (Nig.) Ltd. v. Uni Biz (Nig.) Ltd. (2000) 9 NWLR (Pt. 673) 491; Habib (Nig.) Ltd. v. Wahab Opomulero (2000) 15 NWLR (Pt. 690) 315. Counsel to the respondent urged us to answer the second issue in the positive.

I have given due consideration to the submissions of the learned counsel to the parties. In the instant appeal, the appellant chose not to file any counter-affidavit to counter the depositions made in the affidavit filed by the respondent. The affidavit filed by the respondent raised the issue of multiple suits filed by the appellant against the respondent over the same subject matter. Attached to the affidavit were court processes filed in those various suits to show the abuse of court process. The facts deposed in the affidavit gave the history of the dispute on the property subject of the litigation and how both the appellant and Tamu Kadara (Nig.) Ltd. joined the appeal now pending at the Court of Appeal, Kaduna as parties (appellants) in that suit. All these facts deposed to and the documentary evidence by way of exhibits attached to the affidavit were not countered by the appellant.

The position of law is that where facts deposed to an affidavit or facts that can be deduced from exhibits attached to an affidavit are left unchallenged and they are not self contradictory a court of law is entitled to believe same to be true and undisputed.

The respondent is deemed to have admitted those facts as representing the true and correct position of the matter. In Habib Nigeria Ltd. v. Opomulero (supra) this court stated the position of the law thus:

“Where an affidavit is filed deposing to certain facts and the other party does not file a counter-affidavit or a reply to counter-affidavit as the case may be, the facts deposed in the said affidavit would be deemed as unchallenged, uncontroverted or undisputed and therefore admitted and the court can rely on such admitted facts in resolving the issues.”

In the instant appeal, the appellant chose not to counter the facts deposed in the affidavit supporting the respondent’s motion and the depositions in the affidavit were not self contradictory as such they stand as the gospel truth and admitted facts and the trial court is certainly entitled and obliged to rely on the unchallenged and uncontroverted deposition in resolving the issues before it. By the foregoing, issue No.2 is answered in the positive and resolved against the appellant in favour of the respondent.

On issue No.3 for determination, learned counsel for the appellant has submitted that in the course of determining a controversial issue, the trial court may raise certain transient issue suo motu to aid it in resolving the issue but the court would not decide the case by such transient issues without the contributions of parties counsel on them – reference made to Okonkwo Okonji v. George Njokanma & Ors. (1999) 14 NWLR (Pt.638) 250, (1999) 12 SCNJ 259; Jimoh Adekoya Odubeko v. Victor O. Fowler & Anor. (1993) 7 NWLR (Pt.308) 637, (1993) 9 SCNJ 196. Counsel urged us to answer issue No.3 in the negative.

In his reply, learned counsel for the respondent submitted that the matter raised under issue No.3 by the appellant are the observation of the Judge in his finding and borne by the depositions in the affidavit and the court processes, judgments and rulings attached as exhibits, that these observations were made by the Honourable Judge to show how the appellant tried to fool the trial court into believing that this suit related to a different subject matter and that the parties were different. Counsel to the appellant urged us to resolve issue No.3 against the appellant.

I have carefully considered the matters raised under issue No.3 and the submissions of learned counsel to the parties, I am not in any iota of doubt that the matters raised under this issue by the appellant are the observations of the learned trial Judge in his findings and borne by the depositions in the affidavit and the court processes, judgments and rulings of various courts attached as exhibits. These observations were made by the learned trial Judge to show how the appellant attempted to convince or more appropriately to deceive the court into believing that this suit related to a different subject matter and that the parties were different. This is so apparent in the face of the processes presented to the court by the appellant. In the suit, the appellant simply described the property he was claiming as plot of land measuring 100ft & 100ft and known as Plot No.1 Camp Road, Sabon Gari, Kachia and named the features bounding the plot. But in paragraph 3 of his statement of claim the appellant claimed the disputed plot was bounded to the north by plot No.1 Camp Road Sabon-Gari, Kachia. In paragraph 2 of the statement of claim, he conceded respondent was on plot No.2 Camp Road, Kachia. In paragraph 7 of his statement of claim, the appellant is claiming another plot measuring 100ft by 50ft but also situate at No.1 Camp Road, Sabon-Gari, Kachia. In paragraphs 6, 7, 8, 9, 10 and 11 of his statement of claim, the appellant conceded he built a hotel on the land he was claiming and which was rented out to Tamu Kadara (Nig.) Ltd. even though the appellant concedes in paragraphs 13, 14, 15 & 16 of his statement of claim that plot No.2 Camp Road had been disputed and awarded to the respondent, he still pray for declaration in his favour in paragraph 20(a) & (b) of his statement of claim over the two plots measuring 100ft x 50ft and 100ft x 100ft. He is also praying for perpetual injunction against the respondent on the two plots. Special damages being average income derivable from the two plots and for repairs of buildings, structures, fittings and all property on the two plots. It is in the light of these claims and the revelations in the exhibits annexed to the affidavit in support of the motion that the trial court by its various observations as contained in its ruling saw through the appellant’s deceptions and rightly struck out his claim. The impression of the learned trial Judge from the facts and evidence before him constitute his findings and observations and such impression or observations cannot be issues raised by the court suo motu nor amount to formulating the weakness in the appellant’s case and resolving same in favour of the respondent. In the light of what I have said above, issue No.3 is resolved against the appellant in favour of the respondent.

Finally, with all the three issues in the appeal resolved against the appellant in favour of the respondent, the appeal has consequently failed and ought to be dismissed and it is hereby dismissed. The ruling of the trial court delivered by Malam J. on 23/4/96 in suit No.KDH/KAF/5/95 is affirmed with costs assessed at N6,000.00 in favour of the respondent against the appellant.

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Other Citations: (2004)LCN/1634(CA)