SUIT NO. FCT/HC/CV/2900/12 BETWEEN: SAVANNAH BANK OF NIGERIA LIMITED - PLAINTIFF AND

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1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA ON THE 23 RD OF JANUARY, BEFORE THE HONOURABLE JUSTICE A. B. MOHAMMED SUIT NO. FCT/HC/CV/2900/12 BETWEEN: SAVANNAH BANK OF NIGERIA LIMITED - PLAINTIFF AND 1. THE HON. MINISTER, FCT, ABUJA 2. FED. CAPITAL DEVELOPMENTAUTHORITY 3. SEBASTINE IKECHUKWU - DEFENDANTS 4. EM-N NIGERIA LIMITED 5. TUBANIKE LIMITED Appearances: L.M. Anenga-Amuda (Mrs) for the Plaintiff Bunmi Fasan Esq foe the 1 st and 2 nd Defendant. RULING By a Notice of Preliminary Objection No. M/1189/12, dated 22 nd October, 2012 and filed on 23 rd October, 2012, the 1 st and 2 nd Defendants objected to the jurisdiction of this Court to entertain this suit and prayed the Court to dismiss the suit on the following grounds: 1. That this suit as constituted by the Plaintiff is an abuse of court process because judgment had already been delivered on the subject matter of this suit before another Court of competent and coordinate jurisdiction; and 1

2 2. The judgment delivered on the subject matter of this suit is in Suit No. CV/1491/07: AKPENE HOLDINGS LIMITED & 1 OR v EM-N NIGERIA LIMITED & 3 ORS. and consolidated case in Suit No. CV/436/08: EM-N NIGERIA LIMITED v HON. MINISTER, FCT & 2 ORS. In support of the Objection was a four (4) paragraph Affidavit deposed to by one Abdulkadir Badamasi, a legal assistant in the Litigation Registry of the 1 st and 2 nd Defendants. The averments in the affidavit were to the effect that after the processes in this suit were filed by the Plaintiff and served on the Defendants, the Defendants discovered from its policy file relating to Plot. 435, Central Area, Abuja, the subject matter of this suit, that there was a pending matter on the same subject before Hon. Justice Salisu Garba of Court 5, FCT High Court, Maitama in Suit. No. CV/1491/07: AKPENE HOLDINGS LTD & I OR. v EM-N NIGERIA LTD. & 3 ORS. and another case before another Court in Suit No. CV/436/08: EM-N NIGERIA LTD. v HON. MINISTER FCT & ORS., which was consolidated with the Suit before Hon. Justice Salisu Garba. That the parties in those suits were the same with the parties in the present suit and that judgment had been delivered in the earlier two Suits in favour of AKPENE HOLDINGS LIMITED. A Certified True Copy of the judgment was annexed to the affidavit as Annexture A. In her adopted Written Address in support of the Preliminary Objection, learned Counsel for the 1 st & 2 nd Defendants, Fasan Oluwabunmi O., raised two issues for determination, namely (i) Whether this suit amounts to an abuse of Court process as the facts available before the trial court, the issues, subject matter and the parties herein are the same as the ones previously adjudicated upon by the High Court 5, Maitama, Abuja in Suits Nos. FCT/HC/1491/2007: AKPENE HOLDINGS LTD & 1 OR. v EM-N 2

3 NIGERIA LTD. & 3 ORS. and FCT/HC/CV/436/2008: EM-N NIGERIA v HON. MINISTER, FCT & 2 ORS.; and (ii) Whether the plea of res judicata can stand in this suit in view of the fact that another court of competent jurisdiction has adjudicated on the subject matter of the suit. On the first issue, learned Counsel for the 1 st & 2 nd Defendants submitted that an abuse of court process contemplates multiplicity of suits between the same parties in respect of the same subject matter and on the same issues. Counsel pointed out that to institute an action during the pendency of another suit claiming the same reliefs is an abuse of court process and the only course that will be open to the court is to put an end to the suit. Counsel cited in support of this assertion, the cases of CHIEF VICTOR UMEH & ANOR v PROFESSOR MAURICE IWU & ORS. (2008) 8 NWLR (Pt. 1089) 225 at ; OGOEJEOFO v OGOEJEOFO (2006) 3 NWLR (Pt. 966) 205. It was also the submission of learned Counsel that to determine whether there is an abuse of court process, the Court must peruse the Writ of Summons and the Statement of Claim in this suit and the Writ and Statement of Claim and the judgment in the suits decided upon. Counsel referred to Annexture A to the supporting affidavit and submitted that the parties in this case were all parties in the consolidated suits decided in Annexture A by Justice Salisu Garba of Court 5, FCT High Court, Maitama, Abuja. Citing the case of NATIONAL INLAND WATERWAYS AUTHORITY v STANDARD TRUST BANK PLC (2008) 2 NWLR (Pt. 1072) 483 at 488, Counsel urged the Court to prevent the improper use of its machinery as a means of vexatious and oppressive behaviour by the Plaintiff. On issue two, learned Counsel for the 1 st & 2 nd Defendants submitted that the law is trite that whenever a question in litigation is caught by estoppel 3

4 per rem judicata, the matter ends because of public policy which demands that there must be an end to litigation. She cited in support the case of EXPARTE SALAMI ADESHINA (1993) 4 NWLR (Pt. 442) 254 at 263. Paras. E G. Counsel observed that the aim of the principle of res judicata is to put an end to a matter that has been previously decided upon, so as to saveso much litigation time. Citing ALHAJI MADI MOHAMMED ABUBAKAR v BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS. (2007) 18 NWLR (Pt. 1066) and CHIEF ISREAL OPAWOLE v LAWAL TUNBI (2004) 11 NWLR (Pt. 884) 290 at 293, Counsel submitted that the essence is that a judgment previously handed down will constitute a bar to the present action if certain conditions are met. Citing the case of CHIEF SALIU NOFILA & 4 ORS. v CHIEF BAKI OLUWO & 7 ORS. (2004) 13 NWLR (Pt. 891) 463 at 466, learned Counsel contended that for a successful plea of res judicata the following conditions must be satisfied: (i) the parties in the previous action and the present action must be the same; (ii) the subject matter of the litigation in the previous action must be the same with that in the present action; (iii) the claim in the previous action must be the same as the one in the present action; (iv) the judgment in the previous case must be given by a court of competent jurisdiction; (v) the decision must have finally disposed of the rights of the parties. Counsel submitted that these conditions are present in this case, as the suit in respect of Plot. 435, Central Area, Abuja and the parties in the instant case: SEBASTIAN IKECHUKWU, EM-N NIGERIA LIMITED, TUBANIKE LIMITED, THE HON. MINISTER, FCT AND FEDERAL CAPITAL DEVELOPMENT AUTHORITY, were also the parties in FCT/HC/CV/1491/2007 and FCT/HC/CV/436/2008 in which judgment has been delivered. Counsel urged the Court to dismiss this suit. In opposition to the Preliminary Objection, the Plaintiff filed a six (6) paragraph Counter-Affidavit deposed to by one Edwin John, a litigation 4

5 secretary in the law firm of R. O. Atabo & Co., the Counsel to the Plaintiff. The substance of the Counter- Affidavit was to the effect that the Plaintiff is the original allotee of Plot 435 Central Area, Abuja which is covered by Certificate of Occupancy No. FCT/ABU/MISC.61, a copy of which was annexed to the Counter-Affidavit as Exhibit A. That during the administration of Mallam Nasir El-Rufai, the Plaintiff submitted its own Certificate of Occupancy to Abuja Geographic Information System for recertification and obtained an acknowledgement receipt, a copy of which was also annexed as Exhibit B. That the 1 st & 2 nd Defendants did not issue Certificate of Occupancy to anybody apart from the Plaintiff. That the Plaintiff was not aware of the pendency of Suits Nos. FCT/HC/CV/1491/2007: AKPENE HOLDINGS LTD & 1 OR v EM-N NIGERIA LTD. and FCT/HC/CV/436/2008: EM-N NIGERIA LTD v HON. MINISTER, FCT & 4 ORS., and the Plaintiff was not a party to any of the suits. That the parties in those two suits are not the same with the parties in the present suit and as such this Court has jurisdiction to entertain this suit. In his adopted Written Address in opposition to the Objection, learned Counsel for the Plaintiff, R. O. Atabo Esq, adopted the two issues for determination raised by the learned Counsel for the 1 st & 2 nd Defendants. With regards to issue one, learned Counsel contended that the answer to that issue is in the negative. Counsel pointed out that the submission of learned Counsel to the 1 st & 2 nd Defendants that abuse of court process entaile multiplicity of actions between the same parties on the same subject matter and on the same issue is misconceived in the instant case because in the two suit the parties were: AKPENE HOLDINGS LTD & 1 OR v EM-N NIGERIA LTD & 3 ORS, and EM-N NIGERIA LTD v HON. MINISTER, FCT & 4 ORS, while the present suit is between SAVANNAH BANK OF NIGERIA LTD v THE HON. MINISTER, FCT & 4 ORS. Counsel submitted that it is clear that the parties in this suit are 5

6 different from those in the previous two suits, as Savannah Bank Nigeria Ltd, the Plaintiff in this suit was never a party to any of the previous suits. Counsel explained that the Plaintiff was allocated Plot435, Central Area, Abuja in 1983, which was covered by Certificate of Occupancy No. FCT/ABU/MISC.61, but could not develop same because its application to the 1 st & 2 nd Defendants for construction on the Plot was not treated before the revocation of the Plaintiff s licence by the Federal Government, but on restoration of its licence, the Plaintiff conducted a search, only to discover that its Plot had been reallocated to the 3 rd, 4 th and 5 th Defendants, as a result of which the Plaintiff instituted this suit. Counsel the following cases in which instances of abuse of court process were enumerated: SAKA v ADEBOYE (2010) All FWLR (Pt. 549) , paras. F B; KWARA STATE POLYTECHNIC v AFOLABI (2010) All FWLR (Pt. 547) paras. E B; CHINDO v ISAH (2010) All FWLR (Pt. 542) 1764, paras. C D; R-BENKAY (NIG.) LTD v CADBURY (NIG.) PLC (2012) 9 NWLR (Pt. 1306) , paras. F G; 615, G H, , paras. H C; and EZENWAJI v UNVERSITY OF NIGERIA (2007) All FWLR (Pt. 348) 968, paras. D E. Counsel submitted that from the decisions of the courts, it is settled that for a suit to be adjudged an abuse of court process, the parties and subject matter in the latter case must be the same as in the earlier suit. Counsel argued that the contention of the 1 st & 2 nd Defendants is misconceived since Savannah Bank of Nigeria Limited was never a party to the earlier two suits. Counsel also referred the Court to the case of WAZIRI v GUMEL (2012) 9 NWLR (Pt. 1304) 204, paras F G, where it was cautioned that each case where there seems a glimpse of abuse of court process has to be examined on its merits because different conditions would affect the conclusion as to whether or not such abuse exists. Counsel urged the Court to hold that there is no abuse of court process in the instant case. 6

7 On issue two, Counsel submitted that this suit is at the instance of Savannah Bank of Nigeria Limited and it is a fresh suit claiming against the Defendants as per the writ of summons and statement of claim, and as such the assertion of the 1 st & 2 nd Defendants in relation to res judicata is misplaced. Counsel contended that it is apposite that the Court had held in ROZEN INVESTMENT LTD v N.D.I.C (2007) All FWLR (Pt. 348) 859, paras. D F, that the plea of res judicata operates not only against the parties but against the jurisdiction of the court itself and robs the court of the jurisdiction to entertain the same cause of action on the same issues previously determined by a court between the same parties. Counsel expressed that by that decision the parties, the claim and the subject matter in the previous adjudged suit must be the same with the present suit and the decision must be final, valid and subsisting and made by a court of competent jurisdiction. Counsel argued that these requirements are conjunctive and must be present before the plea of res judicata can be sustained. Counsel cited S.C.C (NIG.) LTD. v ANIJA (2012) 9 NWLR (Pt. 1305) 223, para. A; and SHITTU v OLAEGBE (2010) All FWLR (Pt. 549) 1013, para. A. Counsel pointed out that in the instant case the parties are different as the suit is at the instance of Savannah Bank of Nigeria Ltd. who brought the suit when they discovered to their surprise that their Plot now known as Plot 435 Central Business District was allocated to the 3 rd, 4 th and 5 th Defendants on different occasions without notice. Counsel concluded his address by submitting that this suit does not in any way amount to an abuse of court process nor is caught up by estoppel per rem judicatam, since the parties in the suits referred to by the 1 st & 2 nd Defendants are not the same as in the instant suit and as such whatever judgment was made in the two earlier suits do not bind the Plaintiff in this case who was neither a party not privy to those 7

8 suits. Counsel urged the Court to dismiss the 1 st & 2 nd Defendants Preliminary Objection. I have considered the affidavits and submissions of the parties in relation to this Preliminary Objection. The Objection was basically hinged on two issues, which were that the suit was an abuse of court process in that it two earlier cases between the same parties and on the same subject matter and issue as in this case have been consolidated adjudged by Hon. Justice Salisu Garba of Court 5, FCT High Court, Maitama, and that the decision in the two earlier cases operate as estoppel per rem judicatam in relation to the instant suit as to rob this Court of the jurisdiction to entertain this suit. With respect to the first ground of the Objection which was that of multiplicity of actions, the law is settled that for an objection on such a ground to succeed, it must be shown that the actions are in respect of the same parties, the same subject matter and the same issues. In R-BENKAY NIGERIA LIMITED. v. CADBURY NIGERIA LIMITED(2012) LPELR-7820(SC), (also cited by the learned Counsel for the Plaintiff as (2012) 9 NWLR (Pt. 1306) ), Adekeye, JSC held that: "The concept of abuse of court process relying on numerous decided authorities is imprecise. It involves circumstances and situation of infinite variety and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to interfere with the due administration of justice. The circumstances which will give rise to abuse of court process include:- a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues on multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. b) Instituting different actions between the same parties simultaneously in different 8

9 courts, even though on different grounds. c) Where two similar processes are used in respect of the exercise of the same right for example a crossappeal and a respondent's notice. d) Where an application for adjournment is sought by a party to an action to-bring an application to court for leave to raise issues of fact already decided by the lower court. e) Where there is no law supporting a court process or where it is premised on frivolity or recklessness f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. g) It is an abuse of court process for an appellant to file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. When the appellants application has the effect of over reaching the respondents application. h) where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexacious and an abuse of court process." (pages 25-26, paras. F-G). On this see also: ABUBAKAR V. BEBEJI OIL AND ALLIED PRODUCTS LTD & ORS(2007) LPELR-55(SC)Per Ogbuagu, JSC at page 62-63, paras. E-D; CHIEMEKA TAPAULINE IND. NIGERIA LTD. v. U. B. N. PLC.(2011) LPELR-3971(CA)"Per Ogunwumiju, JCA at page 28-29, paras. A-F; and NLNG LTD. V. OBUSUGOLU & ORS.(2011) LPELR-4601(CA)Per Awotoye, JCA at page 11, paras. C-E. I have examined the Judgment of my learned brother Hon. Justice Salisu Garba in the two consolidated cases of FCT/HC/CV/1491/2007 and FCT/HC/CV/436/2008, as well as the Writ of Summons and the Statement of Claim in the instant suit. In the very opening of the Judgment delivered by Garba J., he stated that the two suits (FCT/HC/CV/1491/2007 and FCT/HC/CV/436/2008) were consolidated because the parties and the subject 9

10 matter in the two suits were the same. But he proceeded as per the requirement of law, to deliver separate judgments for the two consolidated suits. From the Certified True Copy of the judgment which was annexed as Exhibit A to the supporting affidavit of the Preliminary Objection, the parties, in suit FCT/HC/CV/1491/2007 were: Akpene Holdings Limited and Chief Sebastian I. Ejimofor (as 1 st & 2 nd Plaintiffs, respectively) and EM-N Nigeria Limited, Federal Capital Development Authority, Hon. Minister of the FCT and Tubanike Nigeria Limited (as 1 st, 2 nd, 3 rd and 4 th Defendants, respectively), while the parties in Suit No. FCT/HC/CV/436/2008 were: EM-N Nigeria Limited (as Plaintiff) and Hon. Minister of the FCT, Federal Capital Development Authority, Tubanike Nigeria Limited, Akpene Holdings Limited and Chief Sebastian I. Ejimofor (as 1 st, 2 nd, 3 rd, 4 th and 5 th Defendants, respectively). Whilst the two suits were rightly consolidated and adjudged because the parties in the two suits were clearly the same, the current suit is however instituted by Savannah Bank of Nigeria Limited (as Plaintiff) against Hon. Minister of the FCT, Federal Capital Development Authority, Sebastian Ikechukwu, EM-N Nigeria Limited and Tubanike Limited (as 1 st, 2 nd, 3 rd, 4 th and 5 th Defendants). It is therefore evident that whilst the 1 st 5 th Defendants in the instant suit were parties in the two previous suits consolidated and adjudged by Garba J., the Plaintiff in the instant case, Savannah Bank of Nigeria Limited, was not a party in those adjudged suits, but had rather sued those who were parties to the previous suit. Thus as rightly submitted by the learned Counsel for the Plaintiff, since Savannah Bank of Nigeria Limited which is the Plaintiff in this case was never a party in the two adjudged suits, it cannot be bound by the decisions in those two suits. In ADEFARASIN v. DAYEKH (2007) ALL FWLR (Pt. 348) 911, the Court of Appeal in stating the rationale behind joinder of parties stated that: 10

11 "The main purpose of joinder is to avoid multiplicity of actions and join a party or parties that are entitled to share some interest in the subject matter in the sense that non-joinder might necessitate the institution of another action by the party that ought to be joined in the first place. Thus, a person should not be joined as a defendant against whom there is no claim by the plaintiff. See Attorney-General, Imo State v. Cooperative & Commence Bank Plc (1994) 2 NACR 146; Aromire v. Awoyemi (1972) 2 SC 6".[Per Ariwoola, JCA at 936 Para.G]. From the aforementioned authority and indeed so many others relating to joinder of parties, it is evident that since the Plaintiff (Savannah Bank of Nigeria Limited) was never joined as a party to the two previously adjudged suit, the principle of abuse of process based on multiplicity of action between the same parties on the same subject matter cannot be invoked against it.for this reason, I find that the parties in the two adjudged suits are different from the parties in the instant suit. As for whether the subject matter of the two adjudged suits are the same with that of the instant suit,it is clear to me that the subject matter in the two adjudged suits was the claim over the title to property known as Plot 435, Cadastral Zone AO, Central Business District, Abuja. This is clearly the same with the current suit which is also a claim over title to the same property. I so find. As for whether the issues determined in the two adjudged suits are the same with those in the current suit, I could discern that even though the Judgments in the two adjudged suits were over title to Plot 435, Central Area, Abuja, the Plaintiff in the instant case is, by paragraphs 9 26 of the Statement of Claim claiming to be the original allotee of Plot 435 Central Area, Abuja and that same was reallocated by the 1 st & 2 nd Defendants without any formal 11

12 revocation and without any compensation and as such is claiming, inter alia, for declaration of title and declaration of the purported revocation and reallocation as null and void and a perpetual injunction as well as general damages.from the Statement of Claim as summarized above, it is evident that the circumstances and issues in the current suit are different from those decided in the two previous suits by my learned brother Garba J. From the foregoing, I therefore find that although the subject matter between the two adjudged suits and the current suit is the same, which is Plot. 435 Central Area, Abuja, the parties and the issues in the two adjudged suits are different from those in the instant suit. Consequently, I hold that the Plaintiff s suit does not constitute an abuse of court process. The first ground of the preliminary objection therefore, fails. As for the second ground of objection, which was that the judgments in the two consolidated cases constitute estoppel per rem judicatam to the present suit, it is settled law that for a plea of res judicata to succeed, the following conditions must be satisfied: (i) that the parties or their privies in the adjudged suit must be the same with the present suit; (ii) that the claim(s) or issue(s) in dispute in both adjudged and present suit must be the same; (iii) that the subject matter (res) in the two cases must be the same; (iv) that the decision in the adjudged case relied upon to support the plea must be valid, subsisting and final; and (v) that the decision in the adjudged case must be made by a court of competent jurisdiction. See: ATTORNEY-GENERAL OF NASARAWA STATE v. ATTORNEY-GENERAL OF PLATEAU STATESuit No: SC.214/2007 delivered by the Supreme Court on Friday, the 23rd day of March, 2012, per Per ADEKEYE, J.S.C. (Pp , paras. G-E); ODUTOLA V. ODERINDE & ORS.(2004) LPELR-2258(SC) or (2004) 12 NWLR (Pt.888) 574,per Kutigi, JSC (as he then was) at page 10, paras. A-D; THE HONDA PLACE LTD. v. GLOBE 12

13 MOTOR HOLDINGS NIGERIA LTD. (2005) LPELR-3180(SC)per Katsina-Alu, JSC (as he then was) at page 18-19, Paras.G-E; and ADEBANJO OLAYINKA v. ADEBOLA ADEPARUSI & ANOR (2011) LPELR-8691(CA), Per Denton-West, JCA at page 33-34, paras. A-A. Since I had earlier found that the parties and issues in the adjudged two cases are different from the parties and issues in the instant case it is clear that the conditions for the successful plea of estoppel per rem judicatamhave not be satisfied. Hence I find and hold that the 1 st & 2 nd Defendants have also not established their second ground of Objection. On the whole, the two grounds of the Preliminary Objection by the 1 st & 2 nd Defendants have failed. I so hold and accordingly dismiss the Objection as lacking in merit. HON. JUSTICE A. B. MOHAMMED JUDGE 23 RD JANUARY,

IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT MAITAMA ABUJA

IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT MAITAMA ABUJA BEFORE HIS LORDSHIP: HON. JUSTICE SALISU GARBA COURT CLERKS: BWALA NATHAN & OTHERS COURT NUMBER: