Facts:

One Adepetu & Company Nigeria Ltd was a customer of the respondent in one of its branches in Akure, Ondo State. The respondent advanced an overdraft facility to the company which was secured by a deed of legal mortgage over a property situate at Akure, Ondo State. A dispute arose over repayment of the facility and the company filed a suit against the respondent at the High Court of Ondo State. In the suit HOD/107/90, the company made certain claims against the respondent. The matter went to trial and in 1996, the court delivered judgment in favour of the company granting its claims. The respondent was dissatisfied and filed a notice of appeal at the Court of Appeal, Benin Division urging the court to set aside the trial court’s judgment. The appeal was heard and in its judgment delivered in 2008, the Court of Appeal set aside the decision of the trial court and remitted the matter back to the Chief Judge of the Ondo State High Court for reassignment to another Judge for hearing de novo.

The company, after the matter was remitted, abandoned the suit and took no further step to prosecute it. Pursuant to its power of sale under the deed of legal mortgage, the respondent sold the property to the appellant who took possession of the property relying on an order of the Ondo State High Court in a suit HOD/119/2011 filed by the appellant against Adepetu & Company Nigeria Ltd, the previous occupant and owner of the property. The appellant was joined in the suit by Adepetu & Company Nigeria Ltd and the respondent as the 2nd defendant after it came into possession of the land.

The appellant discontinued its suit against Adepetu & Company Nigeria Ltd and in its stead, filed another suit against the respondent at the High Court of Lagos State. The subject matter of the suit LD/1117/2013 was the validity of the sale of the property by the respondent to the appellant. The respondent filed a preliminary objection to the suit alleging abuse of court process. The respondent averred that the parties and the subject matter in the suit are the same with the suit HOD/107/90 pending at the Ondo State High Court. The appellant filed its counter affidavit. In its ruling, the court allowed the preliminary objection of the respondent and ruled that the appellant’s suit is an abuse of court process, since the same parties are before another court in Ondo State in another suit relating to same subject matter. The court further held that whatever decision is reached concerning the subject matter in the suit, may prejudice the decision of the Ondo State High Court which is already seized of the matter. The court therefore declined jurisdiction.

The appellant was aggrieved and filed a notice of appeal at the Court of Appeal, Lagos Division against the ruling of the High Court. One of the issues for determination is whether the lower court’s evaluation of the parties’ affidavit evidence in respect of the preliminary objection is correct and proper.