Propriety of Commencing Another Suit to Challenge a Subsisting Court Order

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In the Supreme Court of Nigeria Holden at Abuja On Friday, the 18th day of December, 2020 Before Their Lordships

Nwali Sylvester Ngwuta

Olukayode Ariwoola

Musa Dattijo Muhammad

Chima Centus Nweze

Uwani Musa Abba Aji

Justices, Supreme Court

SC.276/2013

Between

1. ALHAJI AMEEN SULEIMAN MOHAMMED

2. SURAJ GARBA KARAYE APPELLANTS

And

ALHAJA ABUBAKAR MOHAMMED GWARZO RESPONDENT

(Lead Judgement delivered by Honourable Nwali Sylvester Ngwuta, JSC)

Facts

A certain Musa Adamu obtained an overdraft facility of N250,000.00 (Two Hundred and Fifty Thousand Naira) from the defunct United Arab Bank. One of the facilities he used to secure the facility was a property situate at No. 93, Ibrahim Umar Street, adjacent BUK Staff Quarters, Kano State and he executed a Deed of Legal Mortgage in favour of the Bank. Owing to his default in servicing the debt, the Bank filed an action against him at the High Court of Kano State in Suit No. K/347/92.

On 27th November 1992, the court delivered judgement in Suit No. K/347/92 in favour of the Bank. Thereafter, pursuant to the Order of court, the Bank sold the said property to the Respondent.

However, during the subsistence of the suit/judgement therein and unbeknownst to the Bank and the court, the said Musa Adamu sold the same property to the 1st Appellant, who in turn instituted a parallel action in Suit No. K/258/1993 and put the 2nd Appellant in possession. Judgement in Suit No. K/258/1993 was delivered in the year 2000 and in the judgement, the sale of the property to the 1st Appellant was upheld.

Upon discovering these facts, the Respondent instituted an action against the Appellants at the High Court of Kano State, vide an Originating Summons, in which he claimed, inter alia, a declaration that the judgement of the High Court of Kano State in Suit No. K/258/1993 delivered on 31st January, 2000 is a nullity, in view of the existence of the court’s earlier judgement on the same property in Suit No. K/347/92 which was valid and subsisting at the time the judgement in Suit No. K/258/1993 was delivered. He also sought an order setting aside the said judgement and confirming the Respondent’s title to the property, as well as an order directing the Appellants to deliver possession of the property to the Respondent. After hearing arguments on the Originating Summons, the trial court dismissed the Respondent’s claim.

Dissatisfied, the Respondent appealed to the Court of Appeal which upheld the appeal, and granted the orders sought by the Respondent at the trial court. Further to this, the Appellants lodged an appeal at the Supreme Court.

Issue for Determination

In its determination of the appeal, the Supreme Court considered the following sole issue:

Whether the Appellants could challenge the validity of the sale of the property to the Respondent pursuant to the judgement of court in Suit No. K/347/92 and ex-parte order of attachment and sale of the immovable property, by instituting a fresh action in Suit No. K/258/1993.

Arguments

Counsel for the Appellants argued that the ex-parte application upon which the Court granted order of attachment of the property in favour of the Bank was invalid, and the consequent sale of the property to the Respondent based on the ex-parte order ought to be set aside.

Conversely, counsel for the Respondent argued that the Respondent acquired good title in the property. He relied on Section 15 of the Sheriff and Civil Process Law of Kano State, among other authorities.

Court’s Judgement and Rationale

In its consideration of the propriety of the new suit instituted by the Appellants to challenge previous decision of court and order of attachment of the property, the Supreme Court held that where matters involving the same parties and the same claims are raised contemporaneously in two or more courts, it is desirable and clearly in the interest of peace, that these matters should be heard in only one of these courts. The basis of this rule is so as to avoid multiplicity of actions, and the possibility of two conflicting decisions in respect of one and the same subject-matter.

Once the action is between the same parties, on the same subject-matter, even if differently worded, the suit filed later in time is an abuse of court process and is liable to be struck out. The Court referred to its decision, per Honourable Justice Rhodes-Vivour, in PDP v SHERRIF & ORS. (2017) LPELR-42736 (SC) (PP. 33-34, PARAS. A-E).

On the basis of this principle of law, the filing of Suit No. K/258/1993 during the subsistence of the judgement of the High Court of Kano State in Suit No. K/347/92 which was on the same subject-matter and parties, was an abuse of court process. If the Appellants felt that the order of sale ought not to have been made in an ex-parte application, the proper thing to do is to approach the court and urge it to set aside the order. It is improper to institute another action, to challenge the order.

More importantly, by Section 47 of the Sheriffs and Civil Process Law of Kano State, a remedy is available to the Appellants in the circumstance. By the said provision, the Appellants had 21 (twenty-one) days from the date of the sale complained about, to apply to the court which ordered the auction sale to have it set aside or vacated. However, the Appellants failed to explore the remedy available to them under Section 47 of the Sheriffs and Civil Process Law of Kano State, but went against the normal norms and procedure to institute a fresh action in Suit No. K/258/2993. By the operation of the said Section 47, the Appellants had lost their rights to challenge the sale. They had, by their conduct, waived their right to challenge the order of sale and the said right had also been time barred by the same provision, the period of twenty-one days provided for having lapsed.

Given the foregoing reasons, the Apex Court did not find merit in the appeal.

Appeal Dismissed.

Representation

Dr. G.O.A. Ogunyomi with Ifeanyi Ndimego, Esq. for the Appellants.

Kenneth Einmewe Esq. for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)