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: HIGH COURT FOUR (4) CASE NUMBER: FCT/HC/CV/2390/2013 DATE: 20 TH NOVEMBER, 2013 BETWEEN: ALHAJI GARBA YUSUF IMAM PLAINTIFF AND 1. SAMI BANKOLE O. ORUNGBE ) 2. THE MINISTER F.C.T. ) - DEFENDANTS 3. FRED. CAP. DEV. AUTHORITY ) Parties absent. Mallam Mohammed Shuaibu appearing with S. Mohammed (Miss) for the Plaintiff/Respondent. Owoniyi Omoshalewa (Miss) for the 1 st Defendant. Betty A. Umegbulem for the 2 nd and 3 rd Defendants. Plaintiff s Counsel The matter is slated for ruling. We are ready to take same. R U L I N G This court is to rule on a Notice of Preliminary Objection dated 27/5/2013 against the 1 st Defendant s application dated 7 th Day of May 2013 to dismiss the Plaintiff s suit in lime. The preliminary objection is seeking an order of this court dismissing the said application for being incompetent. The grounds upon which this application is raised are: 1. By the provisions of Order 22 Rule 1 of the rules of this Honourable Court, demurrer has been abolished. 2. A party cannot without filing his pleadings raise points of law to dismiss an action in limine. 3. The 1 st Defendant without filing his pleadings has filed an application dated the 7 th Day of May 2013 seeking to dismiss the Plaintiff s case in limine. 1
4. The defences of Res Judica, standing by and lis pendens being equitable defences can only be raised in the Defendant s pleadings and particulars given. Attached to the Notice of Preliminary Objection is a 23-paragraph counter affidavit to 1 st Defendant s application dated 7 th Day of may 2013 to dismiss the plaintiff s suit in limine; the said counter is dated 27/5/2013 deposed by Idumwonyi Caroline a solicitor in the chambers of Mohammed Shuaib & Co. At this stage it is instructive to state that the said Notice of Preliminary Objection is not supported by an affidavit in support and more especially a written address. What the Plaintiff/Applicant s counsel referred to as an affidavit in support and written address of preliminary objection is counter affidavit and written address to the 1 st Defendant s application to dismiss the Plaintiff s case in limine. It must be also stated that notice of Preliminary Objection is not used to respond to an application as conceived by the Plaintiff counsel, it is itself an application. In the light of the above I hold the considered view that the Notice of Preliminary objection dated 27/5/2013 is incompetent, it is accordingly struck out. R U L I N G Hon. Justice Salisu Garba (Presiding Judge) By an application on Notice dated 7/5/13 brought pursuant to Section 173 of the Evidence Act 2011, Order 7 Rules 1 & 3 of the Rules of this court and under the inherent jurisdiction of this Honourable Court. The application is seeking for the following: 1. An order dismissing this suit in limine for this Honourable court s lack of jurisdiction to adjudicate in this matter. 2. And for such other or further orders as this Honourable court may deem fit to make in the circumstances. The grounds of the application are as follows: 1. This Honourable court lacks the jurisdiction to set aside the judgment of the Hon. Justice Sulaiman Belgore delivered in Suit No. FCT/HC/CV/215/07 or sit as an appellate court in respect of the judgment, it being a court of competent jurisdiction and which validly exercised its jurisdiction over the said matter. 2
2. This action is caught by the doctrine of res judicata; the subject matter, i.e. title to Plot No. 1786 having earlier been litigated upon in Suit no. FCT/HC/CV/215/07. 3. The matter is also caught up by the equitable doctrine of standing by and doing nothing throughout the pendency of Suit No. FCT/HC/CV/215/07. 4. The alleged issuance of Certificate of Occupancy No. 1a69w=14cle-67flr-18308-10 to the Plaintiff by the 2 nd and 3 rd Defendants during the pendency of Suit No. FCT/HC/CV/215/07 is the3refore caught by equitable doctrine of lis pendens. 5. That this suit is an abuse of court process. 6. Every Judge has a duty not to allow the court to be used to scandalize the administration of justice or for ulterior motives as the Plaintiff is doing herein. 7. A court of coordinate jurisdiction cannot sit as an appellate court on issues that has already been decided by a court of coordinate jurisdiction because this will create embarrassment to the judiciary. In support of the application is a 32-paragraph supporting affidavit dated 7/5/13 deposed to by Dayo Obalola, a legal practitioner in the law office of A.U. Mustapha & Co. Annexed to the said affidavit are document marked Exhibit A, B, C, D, E and F respectively. Reliance is placed on all the said paragraphs of the affidavit. Learned counsel filed a 25-page written address dated 7/5/13 wherein counsel formulated the following issues for determination: 1. Whether or not the final decision earlier given by another judge of the High Court of Justice of FCT in Suit No. FCT/HC/CV/215/07, where the 1 st Defendant was confirmed as the rightful owner of the subject land created issue estoppel and/or estopples per rem judicatam baring or precluding the plaintiff from instituting this fresh Suit No. CV/2390/13 to relitigate the issue of title already decided upon in the earlier decision which has not been appealed against. 2. Whether it amounted to an abuse of court processes on the part of the Plaintiff to institute a fresh action before the same court to re-litigation the same questions or issues which had been decided upon by another court of competent jurisdiction. 3. Whether given the fact that Court 28 of the FCT High Court presided over by the Hon. Justice Belgore is a competent court of law to adjudicate over matters that bother on land in the Federal Capital Territory, this Honourable Court can set aside, either wholly or in parts, the judgment of the said Court 28 of the FCT high Court competently delivered in Suit No. FCT/HC/CV/215/07 on the 14 th Day of February, 2013. 3
4. Whether the land, which is the subject matter of this suit, is the same as the land which is the subject matter of Suit No. FCT/HC/CV/215/07. 5. Whether the alleged issuance of Certificate of Occupancy No. 1a6qw-14cle-67flr- 18308-10 to the Plaintiff by the 2 nd and 3 rd Defendants is not caught by the doctrine of lis pendens. On Issue 1, it is the submission that the meaning and application of the doctrine of res judicata, issue estoppels or estoppels per rem judicatam have been pronounced upon and reemphasised by the Supreme Court and the Court of Appeal. ANWOYI v SHODEKE (2006) 13 NWLR (Pt 996) 34 at 45 Paras B D, 49 50 Paras H H; ADEDAYO v BABALOLA (1995) 7 NWLR (Pt 408) 383 at 403 Paras B C. It is submitted that in the circumstance of this case, it is quite plain and obvious that the Plaintiff and his privy (the 2 nd and 3 rd Defendants) are parties and/or privies in both the previous suit and the present suit. See OMIYALE v MACAULEY (2009) 7 NWLR (Pt 141) 598 at 618 619 Paras F B; MACKSON IKENI & ORS v CHIEF WILLIAM AKUMA EFAMO ^ ORS (2001) FWLR (Pt 55) 411. It is the submission that the 2 nd and 3 rd Defendant in this suit are parties in the previous suit and flowing directly from that, the Plaintiff in this suit is a privy to the 2 nd and 3 rd Defendants in this suit. The consequence of that is that this present action by the Plaintiff is caught by doctrine of issue estoppels. See AGBOAULERI v DEPO (2008) All FWLR (Pt 408) SC 240 at 259. On Issue 2, it is the submission that the act of the plaintiff is embarking on instituting of a fresh suit after the final and subsisting decision in the previous suit, clearly amounted to an abuse of court process. See ONYEBUCHI v INEC (2002) 8 NWLR 9Pt 769) 417 at 443; ADELEKE v OYO STATE HOUSE OF ASSEMBLY (2006) All FWLR (Pt 319) 862 at 878 Paras E H. On Issue 3, it is the submission that from the prayers contained in the writ of summons and the statement of claim is the desire to have this Honourable Court set aside certain portions of the judgment of Hon. Justice Belgore of Court 28, FCT High Court delivered in Suit No. FCT/HC/CV/215/07 on 14/2/13. Court is referred to the writ of summons and statement of claim. It is submitted that no constitutional or statutory provision exist for and it is inconceivable to imagine that appeals would lie from the decision of one judge of the High Court of FCT Abuja to another judge of that same High Court. 4
In the circumstances of this suit, it is submitted that in view of the final and subsisting decision in Suit No. FCT/HC/CV/215/07 which had not been appealed against it is wrong for the Plaintiff to have filed this suit to re-open and review the previous decision of Belgore J. SKENCONSULT (NIG) LTD v GODWIN UKEY (1981) 1 SC 4 at 20. On Issue 4, it is the submission that the entity that allegedly conferred interest on the Plaintiff is not only aware of the suit of P.N. Nwachukwu & 47 Ors case that was consolidated with the case pending at Court 28 before judgment was entered and that the Plaintiff in this case was also aware of the pendency of that case but went to sleep and allowed NITEL to fight its cause. It is submitted that the action of the Plaintiff is caught by the doctrine of standing by. See CLAY INDUSTRIES NIG. LTD v AINA (1Q997) 8 NWLR (Pt 516) 230; KAMALU v UMUNNA (1997) 5 NWLR (Pt 505) 321 at 334 335. On Issue 5, it is submitted that the doctrine of lis pendens prevents the effective transfer of rights in any property which is the subject matter of an action pending in court during the pendency in court of the action. See ADARAN OGUNDIANI v O.A.L. ARABA & ANOR (1978) 6 7 SC (Reprint) 42; DR OLAWALE ALAKIJA & ORS v ALH. ABDULAI (1998) 5 SC; MR. KOLAWOLE ORONJI v ALH. S.A. ONIGBANJO (2012) 5 SC (Pt 1763. It is submitted that where litigation is pending as to the right of interest in land, the decision of the court in the suit shall be binding, not only on the litigant but also upon those who derive title under them by alienation made pending the suit. See BARCLAYS BANK OF NIG. LTD v ALH. ADAM BADEJOKO ASHIRU & ORS (1978) 6 7 SC (Reprint) 70 at 85. Court is urged to dismiss the plaintiff s suit. In opposition to this application, the Plaintiff filed a 23-paragraph counter affidavit and a 7- paragraph Further and Better Counter affidavit all deposed to by Idumwonyi Caroline, a Solicitor and Advocate of the Supreme Court of Nigeria practising in the chambers of Mohammed Shuaib & Co. Reliance is placed on all the said paragraphs of the affidavits. Learned counsel filed an 8-page written address dated 27/5/2013 wherein counsel formulated an issue for determination, thus: Whether the Applicant has made out a case to warrant the Plaintiff s action being dismissed in limine? On this issue, it is the submission that the 1 st Defendant has failed to appreciate that this suit in itself is a distinct cause of action from his claims in his counter claim in Suit No. FCT/HC/CV/215/07 wrongly in his first, second and third issues for determination that this case is caught up by the doctrine of res judicata, that is an abuse of court process and by hearing this case, this court is sitting on appeal on the decision of Belgore J. 5
It is submitted that where a judgment is final and on the merit but the party against whom it is given contends that it is obtained by fraud the proper procedure to follow is to file a fresh action to set it aside and not by going on appeal. See N.S. ENG. CO. LTD v ESENDUKA (2002) 1 NWLR 9Pt 748) 469 at 490; OLUFUNMKISE v FALANA (1990) 3 NWLR (Pt 136) 1 at 10. On the issue of Plaintiff standing by as contended by the 1 st Defendant, it is submitted that the 1 st Defendant has not shown any evidence tending to prove that the Plaintiff was aware of the pendency of the said suit. Court is referred to Section 131(1) 132 and 133 of Evidence Act. It is submitted that the doctrine of lis pendens has no application to the facts of this case; this is because two important ingredients that will give rise to the application of the principle as shown in paragraph 3.5.7 of 1 st Defendant s address are lacking in this case. These are (a) that there must have been a sale of the property in dispute and (b) that the other party must have been served with the originating process. Court is urged to dismiss the application. On the part of the court after a careful consideration of the process filed and submission of learned counsel on both sides, I do adopt the sole issue formulated by the Plaintiff/Respondent s counsel as the sole issue for determination by this court; thus: Whether the Applicant has made out a case to warrant the Plaintiff s action being dismissed in limine. It is trite law that generally speaking, when a trial court has given judgment in a case on the merit, that court is functus officio in relation to the judgment once it is pronounced. It cannot ordinarily re-open the case for a fresh hearing. A party dissatisfied with the judgment can only bring proceedings on appeal against it. However, at Common law and Equity, a person against whom a judgment had been procured by fraud is entitled to approach the court by an action or motion to set aside the judgment. See REMAWA v NACB OFC LTD (2007) 2 NWLR (Pt 1017) 155; INEC v NNAJI (2004) 16 NWLR (Pt 900) 473. It is the contention of the 1 st Defendant that the Plaintiff in embarking on instituting of a fresh suit after the final and subsisting decision in the previous suit without appealing same, amounted to an abuse of court process. In the instant case going by the writ of summons, the main fulcrum upon which the case is premised is that the judgment in Suit No. FCT/HC/CV/215/2007 was obtained by fraud and or misrepresentation. As stated earlier in the case of INEC v NNAJI (Supra) this court can hear and determine an action for setting aside of judgment founded or obtained by fraud. 6
It is also the law that where a judgment is final and on the merit but the party against whom it is given contends that it is obtained by fraud the proper procedure to follow is to file a fresh action to set it aside and not by going on appeal. See N.S. ENG. CO. LTD v EZENDUKA (Supra). In OLUFUNMISE v FALANA (Supra) the Supreme Court held that: A judgment, which has been obtained by fraud either on the court or of one of the parties, can be impeached by means of an action which can be brought without leave and is analogous to the former chancery suit to set aside a decree obtained by fraud. In the light of the above, I hold the considered view that the issues formulated and argument therein by the 1 st Defendant/Applicant in his written address is misdirected and misplaced, it is accordingly discountenanced. In conclusion, I hold that this application is lacking in merit and it is hereby dismissed. JUSTICE SALISU GARBA (PRESIDING JUDGE) Plaintiff s Counsel In defending this application we have filed an affidavit and further affidavit. In the circumstance, we shall be asking for N10,000.00 cost. 1 st Defendant s Counsel - We will not be conceding to any cost. We filed a process and the plaintiff responded to it. The parties should bear their own cost. Court After listening careful to the application for cost by the Plaintiff/Respondent and the reply by the 1 st Defendant/Applicant s counsel not conceding to any cost, I am inclined to agree with the submission of the learned counsel for the 1 st Defendant/Applicant s positions on this that parties should bear their own cost. JUSTICE SALISU GARBA (PRESIDING JUDGE) Plaintiff s Counsel We have an application for interlocutory injunction. The Defendants have responded to the application. 2 nd and 3 rd Defendant s Counsel In this matter parties have exchanged pleadings. It is my view that the application for interlocutory injunction be put aside and the matter be adjourned for accelerated hearing. The parties will maintain status quo. 7
1 st Defendant s Counsel I aligned myself with what the counsel to the 2 nd and 3 rd Defendants has submitted; it will be tidier to proceed with the accelerated hearing of the suit. Plaintiff s Counsel I aligned myself with the submission of the 2 nd and 3 rd Defendant s counsel that the court should order the parties to maintain status quo pending the hearing and determination of the suit. injunction dated 26/3/2013 and filed on the same date. I wish to withdraw my Motion on Notice for interlocutory Court After listening carefully to the submission of the learned counsel on both sides, I am in total agreement with the submission, the court should order the parties to maintain status quo pending the hearing and determination of the substantive suit. In the circumstance, i order the parties to maintain status quo pending the hearing and determination of the substantive suit. Meanwhile the Plaintiffs/applicants Motion on Notice for interlocutory injunction dated and filed on 26/3/13 is hereby struck out. I order for accelerated hearing of the suit. JUSTICE SALISU GARBA (PRESIDING JUDGE) 2 nd and 3 rd Defendant s Counsel The 2 nd 3 rd Defendants have 2 pending applications; they are Motion No. M/10156/13 and M/10155/13. M/10156/13 and move the other motion. We apply to withdraw Motion no. Court Motion No. M/10156/13 filed by the 2 nd and 3 rd Defendants/Applicant is hereby struck out based on the application of their counsel. Our Motion is No. M/10155/13 and is dated the 5/7/13 and filed on 10/7/13. We are seeking for the 3 prayers on the face of the Motion on Notice. I moved in terms of the motion paper. Plaintiff/Respondent s Counsel No objection. 1 st Defendant/Respondent s Counsel No objection. Court The 1 st 3 rd prayers on the face of the 2 nd and 3 rd Defendant/Applicant s Motion No. M/10155/13 is hereby granted as prayed. Meanwhile the suit is adjourned to 20 th and 21 st January, 2014 for hearing. 8 JUSTICE SALISU GARBA (PRESIDING JUDGE)
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