Teri V. Augustine (2021)
LAWGLOBAL HUB Lead Judgment Report
JAMES GAMBO ABUNDAGA, J.C.A.
This is an appeal against the Judgment of High Court of Borno State in Suit No. BOHC/MG/CV/48/2017, delivered on 23/04/2019 by Hon. Justice B. Karumi.
In brief, the facts of the case is that the Appellant’s husband and the Respondent were both police officers who served at the Borno State Command of the Nigeria Police Force, Maiduguri. The case of the Respondent who was the claimant at the lower Court is that in 1981, himself and the Appellant’s husband were occupants of House No. B121 of Ibrahim Taiwo Housing Estate and were in quiet possession with their families for over 38 years. That the payment of rent was then done by the Police authorities until such payment was stopped by the then Inspector General of Police, Estem Eyame. That upon the aforesaid stoppage, the two of them sought the intervention of one Haruna (deceased) and one Mairo Ali (a former Asst. Commissioner of Police) to allow them to continue to occupy the premises and to pay the rent. That based on this intervention, the General Manager of the Housing Corporation which was in control of the Estate approved their request, and they therefore became co-owners with the Appellant’s husband to House No. B121. That with the approval, the General Manager asked that only one name be submitted, and that should be the name of the most senior of them, according to housing policy. That he was the most senior and therefore his name ought to be submitted but because he was out of town on special duty, the name of the Appellant’s husband was submitted. It is also the case of the Respondent that when in 2003 the houses were sold on owner-occupier basis, he and the Appellant’s husband contributed N5000 to pay for the processing form, and when the house was sold at N720,000.00 he made the payments in two instalments because his colleague said he had no money. That he had to make the payments in order to avoid losing the house, and on the understanding that his colleague would later refund the half which represents his own amount for the house. That upon payment, the deed of Assignment bearing his colleague’s name was released to him. However, when his colleague upon further payment of additional money to the Housing authority requested for title document, he was turned down, and the deed of assignment was not released to him by the Housing authority. That without his knowledge, his colleague (the appellant) went to Court against the housing authority and got Judgment in his favour. It is upon these facts that the Respondent went to Court also against the Appellant’s husband praying for the following reliefs:
a. Declaration that both claimant and the defendant are co and lawful owners of the house No. B121 Ibrahim Taiwo Housing Estate.
b. 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.
c. An order directing the defendant to refund N360,000 (Three Hundred and Sixty Thousand Naira) being half of the amount paid by the claimant to housing authority.
d. Perpetual injunction restraining the defendant by himself or privies, agent or servant from trespass into his own portion of the house.
On the other hand the case of the Appellant’s husband is that there was never any agreement that the most senior officer’s name should be submitted to the housing corporation for registration. That sometimes in 1986, when applications were being made for these houses as tenants in the Estate, the Respondent showed no interest when he told him that they should apply. That he then applied in 1986 to the Housing Corporation and got approval and was given an offer. It is also his case that he only granted the Respondent’s request that he allowed his family stay in the house as he would soon go on transfer since they were colleagues. That since 1986, when he was offered the house he was paying the rent personally to the Housing Corporation except when he would not be around, the money was given to the Respondent to pay for him. It is further his case that he applied for and was offered the house for sale by Borno State Government through the Ministry of Housing and Environment on its policy of owner/occupier basis on 16/5/2003 at the price of N720,000 which he paid for in 6 instalments. That he also paid for the deed of assignment but was not given as he was told that it was not ready. That when he went later to collect it, he was told that it had been collected by somebody whose name the Ministry refused to disclose to him. It is also his case that after repeated demands for the title deed without positive result from the Ministry he sued the Ministry for it, and Judgment was given in his favour and the Ministry was therefore ordered to execute the deed of assignment in his favour.
The Respondent’s case is encapsulated in his 20 paragraph amended statement of claim, while the Appellant’s case is as contained in his 20 paragraph amended statement of defence.
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 also tendered nine documents which were admitted in evidence. One other document was tendered from the bar and admitted in evidence bringing to ten documents tendered and admitted in evidence at the instance of the Appellant.
All witnesses for both the Appellant and Respondent testified by adopting the witness statements on oath of the witnesses.
At the close of the trial, parties filed and exchanged final written addresses which they subsequently adopted.
In the Judgment, the trial Court gave Judgment in favour of the Respondent. Not satisfied with it, the Appellant appealed to this Court through the Notice of Appeal filed on 23/05/2019. The Notice of Appeal contains five grounds of appeal inclusive of the omnibus ground of appeal. However, he sought no relief in his Notice of Appeal.
The Record of Appeal duly complied and transmitted, parties filed their respective briefs of argument.
The appeal came up for hearing on 10/11/2020, whereat, M. M. Abdullahi who appeared for the Appellant adopted the Appellant’s amended brief of argument dated 24/09/2020 and filed on 14/10/2020; settled by him. The Respondent’s amended brief of argument, dated 22/10/2020 and filed on 26/10/2020 was adopted by Mr. Adam Abdullahi, who held the brief of A. Abdul-Rahman, who settled the amended Respondent’s brief of argument.
M. M. Abdullahi also adopted the appellant’s reply brief of argument, dated 30/10/2020, and filed on 04/11/2020.
The Appellant formulated four issues from his five grounds of appeal. The Respondent adopted the said issues. The issues as formulated are:
- 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.
(Distilled from ground of appeal Number three (3).
- 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.
(Distilled from ground of appeal Number (4).
- 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?
(Distilled from ground of appeal Number 1 and 2).
- 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.
(Distilled from ground of appeal Number (5).
The issues are apt for the exhaustive determination of this appeal. I hereby adopt them.
Issue One
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 traced 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.
Arguments of Counsel
Appellant’s Counsel submits that the Attorney – General of Borno State and Borno State Ministry of Housing and Rural Electrification Borno State sued as 2nd and 3rd defendants in this suit whose names were subsequently struck out are necessary parties to this case pointing out that the Appellant traced his root of title over the house to the Borno State Ministry of housing and rural electrification and Attorney General of Borno State. Counsel submits that a necessary party to an action is one that it is desirable that he should be bound by the result of the action, and without which the question in controversy cannot be effectively and completely settled unless he is a party. Counsel relies on the case of Adefarasin vs. Dayekh (2007) All FWLR (Pt. 348) page 911 at 914.
Counsel further submits that by virtue of the Appellant’s pleadings, the evidence of the witnesses and Exhibits “GA3” and “ST1” to “ST10” issued by the office of Attorney – General of Borno State, Ministry of Housing and Rural Electrification and Ministry of Housing and Environment, the lower Court was wrong in striking out the 2nd and 3rd defendants from the suit and thus has occasioned miscarriage of justice to the Appellant. Counsel urges the Court to resolve this issue in the Appellant’s favour. On the 2nd leg of issue one, Counsel submits that since the Respondent frivolously traces his root of title over house No. B121 to the Borno State Ministry of Housing and Rural Electrification and Attorney – General of Borno State just as the Appellant did, the Respondent is privy to Judgment in Suit No. BOHC/MG/CV/53/15 which was delivered on 17th March, 2016, tendered as Exhibit “ST10”. Counsel refers the Court to pages 46 – 49 of the record of appeal. On the term “privy”, Counsel relies on the case of Agbogun Leri vs. Depo (2008) All FWLR (Pt. 408) 240 at 245. It is therefore contended by Counsel that since the Respondent is a privy to Judgment in Suit No. BOHC/MG/CV/53/15 the Respondent’s case in the instant appeal is caught by doctrine of estoppel, and that the lower Court therefore lacks jurisdiction to hear same. The Court is therefore also urged to resolve this issue in favour of the Appellant.
For the Respondent, it is submitted that the Respondent has no claim against the 2nd and 3rd defendants who were initially made parties because his case and the reliefs sought therein can be determined without the two defendants. That they are therefore not necessary parties. Respondent’s Counsel submits that a person is a necessary party to an action where it is desirable that he should be bound by the result and where the question in controversy cannot be effectively and completely settled unless he is a party. Cited in support of this submission is the case of Adefarasin vs. Dayekh (2007) All FWLR (Pt. 348) 911 at 914 para E – G. Counsel further submits that by Order 17 Rule 16(1) of the Borno State High Court (Civil Procedure) Rules 2017, no suit shall be defeated for non joinder of a party, and that the Court can deal with the matter in controversy as regards to the rights of the parties before it. Counsel urges the Court to resolve this issue in favour of the Appellant.
Taking on the second leg of issue one, Counsel submits that Appellant’s contention that Suit No. BOHC/MG/CV/48/17 is caught by doctrine of estoppel, and that the Court lacks jurisdiction to hear same is misconceived. He submits that privies in estate are never applicable in the instant case because both of the parties claimed ownership through Ministry of Housing and Rural Electrification, and that the Respondent claimed that they are co-owners.
It is further submitted for the Respondent that the Appellant who initiated Suit No. BOHC/MG/CV/53/15, ought to join the Respondent in the suit because the inclusion of the Respondent in the suit would have determined the issue of co-ownership; that without doubt the Respondent was a necessary party in that suit but was not joined, and that having not been joined he could not be bound by the Judgment or decision of which he had no notice and could not participate therein. Counsel relies on the case of Bello vs. INEC (2010) All FWLR (Pt. 526) 392. Counsel further submits that the issues in the two suits are different and therefore the existence of the previous suit cannot operate as estoppel against the commencement of Suit No. BOHC/MG/48/17. The Court is therefore urged to discountenance with the Appellant’s submission on the second leg of issue one also.
Resolution of Issue One
1st leg of issue one
The resolution of issue one should necessarily start with a proper understanding of the meaning and import of who is a proper and 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 ). 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 decision of whether a party is a necessary party or not, goes beyond the claims/reliefs sought by the plaintiff/claimant in the case. It involves a consideration of the pleadings and evidence adduced in support of the pleaded facts. The principal claim of the Respondent is in paragraph 20(a); which is,
“Declaration that both claimant and the defendant are co and lawful owners of the house No. B121 Ibarhim Taiwo Housing Estate.”
The other claims, to wit, B, C, and d are dependent on the success or otherwise of (a).
The parties in respect of which issue one revolves are (i), the Attorney General of Borno State, who was initially joined in the suit as 2nd defendant, and (ii) Ministry of Housing and Rural Electrification, sued as 3rd defendant. However, on the application of the Respondent, their names were struck out. Now in the Respondent’s amended statement of claim, it was averred that the house No. B121 was paid for by the Respondent in two instalments for himself and the Appellant at the cost of N720,000; with the view that the Appellant would refund half of the money to him whenever he got the money, and to avoid them losing the house to other interested parties. The payment was made to the Ministry of Housing, and into the coffers of Borno State Government. See paragraphs 10, 11, 12, and 13 of the claimant’s amended statement of claim at page 12 of the record of appeal. In paragraph 14 the Claimant/Respondent pleaded that upon completion of payment for the house, a deed of assignment was issued to him bearing the name of the Defendant/Appellant. It is also averred in the Respondent’s amended statement of claim that despite his full payment for the house, the Appellant made additional payment to the housing authority in order to take advantage of having his name on the title document, and to deny him his right of ownership over the house as co-owners. That he made a complaint on this to the then Area Commander and the former Secretary to the State Government Baba Ahmed Jidda, who both acted on the complaint and response by the legal unit of the housing corporation. Further pleaded is that upon completion of the additional payment for the house to the housing authority the defendant (now appellant) demanded for title document in respect of the house but the housing authority refused to give him the deed of assignment in respect of the house as same had been released to him after payment. That he was not aware that there was a case before the High Court in respect of the house against housing authority until after the defendant got Judgment in his favour.
In his amended statement of defence, the defendant denied that payment for the house was made to the housing authority by the Respondent. He averred that he made payment for the house which was offered to him on his application on owner-occupier basis in six instalments and upon completion he paid for the deed of assignment which could not be given to him soon because, he was informed that it was not ready. That when he subsequently demanded for it he was informed that it had been collected by somebody, who they refused to disclose to him. That after repeated demands, without positive response from the ministry he sued the ministry for the title deed before High Court 1 and got Judgment in his favour whereby the Court ordered the ministry to execute the deed of assignment in his favour. He pleaded the Judgment which was subsequently admitted in evidence at the trial as Exhibit “ST10”. It is important to note that the writ of summons by which the Respondent commenced his action was endorsed with his statement of claim, subsequently amended; the written statement on oath of the witnesses. The documents intended to be put in evidence were frontloaded. See page 19 of the record of appeal for the list of documents to be relied upon at the trial as frontloaded by the Respondent. The defendant/Appellant’s amended statement of defence was accompanied by his witness statement on oath. He also frontloaded the documentary Exhibits he would rely on at the trial. I refer to the defendant’s list of Exhibits at page 33 of the record of appeal.
At the trial, the Respondent tendered Exhibits “GA1” “GA2” and “GA3”, while the Appellant tendered Exhibits “ST1”, “ST2”, “ST3”, “ST4”, “ST5”, “ST6”, “ST7”, “ST8”, “ST9” and “ST10”.
It must be noted that all the Exhibits, tendered by both the Appellant and Respondent conspicuously bear the Appellant’s name.
The following facts on record also call for special attention:-
(i) The Respondent pleaded and testified that upon payment of the full price for the house, he was given the deed of assignment for the said house. The deed of assignment was admitted in evidence as the Exhibit marked ”GA3”. The deed of Assignment is between Borno State Government and Mr. Stephen Teri (the Appellant).
(ii) The Respondent also pleaded and testified to the fact that upon the Appellant making further payment, he demanded for the deed of assignment but it was not given to him because it was he (Respondent) who paid for the house. Also the Appellant also pleaded, and this was not replied to by the Respondent, that upon completion of payment for the house, he paid for the deed of assignment but it could not be given to him immediately because it was claimed that it was not ready. However, when he subsequently went to collect it, he was informed that it had been collected by somebody whom they refused to disclose to him.
It is therefore clear that the housing corporation or ministry of Housing and Environment, or whatever gave the deed of assignment to the Respondent despite the fact that it did not bear his name, and when the Appellant, whose name appears on the deed of assignment and who had paid for the said deed (see Exhibit “ST2”) demanded for it, he was refused. He had to sue for it, and most surprisingly, I should state, the said Ministry of Housing and Rural Electrification, Borno State, and Attorney General, Borno State who were sued by the Appellant to Court for the deed of assignment despite repeated demands without positive response, refused to join the Respondent or inform him to apply to join in the suit so they could together defend their decision to give the deed of assignment to him instead of the Appellant. And to make matters worse, they put up no defence to the said Suit No. BOHC/MG/CV/53/15, but chose to rest their case on the claimants case and lost, in the result of which they were ordered to execute a deed of assignment in favour of the Appellant.
The Ministry of Housing and Rural Electrification, Borno State, and Attorney General Borno State were offered a unique opportunity of extricating themselves from their obvious dereliction of duty with respect to the role played by them in Suit No. BOHC/MG/CV/53/15, but chose to take the easy way out by the Respondent’s misinformed decision to withdraw the suit against them. To say the least, this is quite unfortunate. By their action, we now have a situation in which, there is in existence a Judgment in Suit BOHC/MG/CV/15 in favour of the Appellant, and the obviously indefensible Judgment in Suit BOHC/MG/CV/48/17 in favour of the Respondent, but now on appeal.
It should have been obvious to the learned trial Judge that in the face of the pleadings in this case, the written statements on oath of witnesses, and the frontloaded documents that the Respondents’ claim could not be fairly, completely, effectively and finally decided or determined by him without the two being made parties, either as Co-claimants or Co-defendants, so that they can respond to the averments made by the parties that concern them.
The Respondents’ Counsel refers this Court to Order 17 Rule 16(1) of the High Court of Borno State (Civil Procedure) Rules, 2017 which provides:
“No proceedings shall be defeated by reason of misjoinder or non-joinder of parties and a Judge may deal with the matter in controversy so far as regards the rights and interests of the parties actively before him.”
What this rule provides is that a matter cannot be declined hearing merely on the ground of misjoinder or non-joinder of parties. It however does not stop the Court hearing a matter in which there is either misjoinder or non-joinder of necessary parties from making appropriate orders either to strikeout such misjoined parties or to order the inclusion of such necessary but non-joined parties, as in this case where they were indeed made parties but were wrongly struckout, and therefore made an issue in this appeal.
The first plank of issue one must be, and is hereby resolved in favour of the Appellant and against the Respondent.
I shall now proceed to consider the second plank of the first issue. I want to commence it with an appreciation of the definition of the term “Privy”. 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. It is evident from the pleadings and evidence that both the Appellant and Respondent traced their title to the Ministry of Housing and Electrification and Ministry of Housing and Environment. No doubt, it is appropriate to define both the Housing Corporation represented by the Ministry and Rural Electrification, Borno State and the Attorney General, Borno State as privies of the Appellant and the Respondent. However, it amounts to gross misconception and misapplication of the law to hold that the Respondent, is privy to the Respondent, in respect of Judgment in Suit No. BOHC/MG/CV/53/15, and is therefore caught up by estoppel to disentitle or disqualify him to maintain action in the suit on appeal. In the first place, as pleaded by the Appellant in the instant suit on appeal, and this was not traversed by the Respondent the defendants in Suit No. BOHC/MG/CV/53/15 refused to disclose to him the name of the person who collected the deed of assignment from the Housing Corporation without his authorization. Therefore, the Appellants’ action in the said suit was against the Ministry of Housing and Rural Electrification, Borno State, and the Attorney General of Borno State only. In the said suit, his action was for an order of specific performance, compelling the execution of a deed of assignment with respect to the house No. B121 Federal Low Cost Housing Estate also known as Ibrahim Taiwo Estate Maiduguri. The Respondent pleaded and testified that he was not aware of the pendency of this suit until after Judgment. There is no contrary evidence from the Appellant that the Respondent was aware of the proceedings in that case and decided to sit down and watch. In the case of Chief Emmanuel Bello vs. INEC & 2 Ors (2010) LPELR-767 (SC), it was held interalia:
“… There is no doubt that PDP and Haske Hananiya were necessary parties to the suit before the trial Court. They were not joined. Not having been joined they could not be bound by a judgment or decision of which they had no notice and which they could not participate in …” per Mahmud Mohammed, JSC (Pp. 56 – 57 paras F – A).
More importantly, the contention of the Appellant that the Respondent was by reason of the Proceedings in Suit No. BOHC/MG/CV/53/15 caught up by estoppel is not tenable. The Appellant did not plead estoppel in his amended statement of defence, and cannot therefore raise it in this appeal. On this, I refer to paragraphs 18 and 19 of the Appellant’s amended statement of defence in which he pleaded the Judgment in the said Suit No. BOHC/MG/CV/53/15 only to show that after repeated demands for the title deed without positive response from the Ministry, he sued the Ministry for his title deeds and got Judgment in his favour; and not as estoppel. This is also clear from paragraph 20 of the said amended statement of defence in which it is stated:
“Whereof the 1st defendant shall urge this Honourable Court to dismiss the claimant’s claim as it is frivolous, baseless and lacks merit.”
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 SCNJ 491 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. The issue is therefore resolved in favour of the Respondent and against the Appellant.
Issue Two
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 hear this case.
Arguments of Counsel
Issue two as it relates to Counsel’s argument that Exhibit “ST10” (the high Court of Justice No. 1 Maiduguri, Borno State delivered on 17th March, 2016 over house No. B121 between the Appellant, the Attorney – General of Borno State and Ministry of Housing and Rural Electrification Borno State, the Respondent’s case is caught by doctrine of estoppel has been fully considered in the second leg of issue one. Therefore, I adopt the reasoning and conclusions reached therein, and hold that same is resolved in favour of the Respondent and against the Appellant.
What therefore remains to be considered in issue two is the submission, that by virtue of the said Judgment tendered and admitted in evidence as Exhibit “ST10”, the Respondent’s suit on appeal herein is an abuse of Court process and robbed the lower Court of jurisdiction to hear same.
Counsel’s submission is that the Respondent’s Suit No. BOHC/MG/CV/48/17 is not initiated by due process of law and the subject matter has already been litigated upon by a Court of competent jurisdiction. Counsel refers to the case of Intercontinental M. Bank vs. Union Bank (2004) Vol. 18 (Pt. 1) NSCQR page 134 at 155, para F – G as to what would in law amount to abuse of Court process. Counsel urges this Court to resolve this issue in the Appellant’s favour.
For the Respondent, it is submitted that Suit No. BOHC/MG/CV/53/15 and Suit No. BOHC/MG/CV/48/17 even though instituted over same subject matter, the parties and issues were different, and therefore there is no abuse of Court process. Counsel relies on the case of Saka vs. Adeboiye (2010) ALL FWLR (Pt. 549) 1156.
Let me adopt the definition of abuse of Court process as given in the case of Ahmed Saka vs. Mr. Pelumi Adeboiye & Anor (2009) LPELR-4920 (CA) where Bage, JCA (as he 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).
Now, what was in issue in Suit No. BOHC/MG/CV/53/15 was the claim of the Appellant that having paid in full the purchase price for the house, “B151” the defendants therein refused to deliver the title deeds to him. Therefore, in that suit he prayed for an order of specific performance to compel them to execute the deed of assignment in his favour. Whereas, in Suit No. BOHC/MG/CV/48/17 the Respondent herein who was the claimant prayed for a declaration that he and the Appellant are co-owners of the said house, amongst other ancillary reliefs. In Suit No. BOHC/MG/CV/53/15, the parties were the Appellant as claimant and Ministry of Housing and Rural Electrification, Borno State; and Attorney – General, Borno State as defendants. The Appellant, who was the claimant, did not deem it necessary to join the instant Respondent as defendant since his claim was clearly against the two aforesaid defendants who refused to disclose to him the person to whom they gave the deed of assignment made between them and the Appellant (who was the claimant in the said suit). On the other hand, the parties in Suit No. BOHC/MG/CV/48/17 are the Respondent (as claimant) and Appellant (as defendant).
It is therefore without doubt that Suit No. BOHC/MG/CV/48/17 cannot constitute abuse of Court process in relation to Suit No. BOHC/MG/CV/53/15; I hold. This issue is therefore resolved in favour of the Respondent and against the Appellant.
Issue three and four are tied together, and are to be considered together. The said issues three and four are:-
Issue Three
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?
Issue Four
Whether the lower Court was right in holding that respondent has proved his case and is entitled to jointly share house No. B121 Ibrahim Taiwo Housing Estate Maiduguri, with the appellant.
Issues three and four in effect call upon this Court to determine whether upon consideration of the evidence adduced, the Respondent proved his case to be entitled to the Judgment of the trial Court which declared him joint owner of house No. “B121” with the Appellant.
In my consideration of the first plank of issue one, I resolved that the Ministry of Housing and Rural Electrification, Borno State; and Attorney General Borno State are necessary parties without whose presence the Respondent’s claim cannot exhaustively, effectively, finally and fairly be determined. This is because, there are averments in the Respondent’s amended statement of claim and corresponding averments in the Appellant’s amended statement of defence which can only be resolved with inputs by the aforesaid necessary parties. Therefore, without these parties being joined and heard on the averments in which their roles in the whole transaction leading to the Respondent’s action are mentioned, issues three and four cannot be justly, effectively and finally be decided.
In sum, it is therefore my firm view that notwithstanding, the resolution of the second plank of issue one, and issue two in favour of the Respondent and against the Appellant, the resolution of the first plank of issue one in favour of the Appellant and against the Respondent determines this appeal in favour of the Appellant. In other words, the appeal succeeds on the first plank of issue one.
Accordingly, the Judgment of the lower Court delivered on 23/04/2019 by Hon. Justice B. Karumi in Suit No. BOHC/MG/CV/48/2017 is hereby set aside. It is hereby consequently ordered that the Ministry of Housing and Rural Electrification Borno State, and Attorney – General Borno State who were at the inception of the suit joined as 2nd and 3rd defendants respectively but subsequently struckout be restored as the 2nd and 3rd defendants respectively. It is further ordered that the matter is remitted to the lower Court for retrial before another Judge.
Costs is assessed at N150,000 in favour of the Appellant against the Respondent.
Others: CA/G/325/2019
