KWAGE & ORS V UPPER SHARIA COURT GWANDU & ORS

KWAGE & ORS V UPPER SHARIA COURT GWANDU & ORS


IN THE COURT OF APPEAL
IN THE SOKOTO JUDICIAL DIVISION
HOLDEN AT SOKOTO

ON THURSDAY, 8TH JUNE, 2017


Appeal No: CA/S/54/2014

CITATION:

Before Their Lordships:

HUSSEIN MUKHTAR, JCA

MUHAMMED LAWAL SHUAIBU, JCA

FREDERICK OZIAKPONO OHO, JCA


BETWEEN

MALLAM UMARU KWAGE
SANIN MALLAM UMARU KWAGE
DAN ABU KAMBAZA
DAN ABU
ADA SARKIN TASHA
MALLAM MANDIYA
MODE KANKU
SARKI NA SA DU
ALU DAN RAKIYA
AUDU NA MAMU
NASIRUN LABBO KANKAMO
ABU SIDI
AWALUN AUDUWA
ABUN ALUN SANDE
ZAKI DOGO
SANIN SANDE
ABUN DAN BUKI
ZAKI SHAYAU
ABUN DAN ALHAJI
UMARU TSOHO
BALA BARE
FARUKU DANYE
MAIDABO HUNA
MAI UWAN DAN SARKI
MANIN MAIDABO
MALLAM DANDARE
AUDU A.I.C
MAMMAN DAN GIDAN GARBA
NASIRUN BAKANIKE
UMARU CHAJI
MAIDABO GARBA
DAN MALLAM
DAN RUKA
MALLAM TUKUR
MALLAM UMARU DANDARE
ZAKI MAI KWALI
ZAKI KAN CHI
KURUMA DAN GAYYA
MALLAM MAIDAMA
MAMMAN LOLO
LIMAN YAHAYA
UMARU NOCHE
MAIDAJI CEBERU
ZAKJ MAI KARSHI
MURTALA SARKIN FAWA
ALH. ABIKU CEBERU
SANIN MALLAM
LUMAN TS0HO YAR KWABA
AUDUN MANU
ABUN CHINDO
SARKIN ASKI CEBERU
ALLAMI MODI
ALH. UMARU DAN MAIDASO
ALHAJI MANU
ATIN DAN RAKIYA
(FOR THEMSELVES AND ALL OTHER MEMBERS OF CEBERU, KACHIRA, GWANDU, AND KAMBAMZA VILLAGES WITH FARMLANDS IN KARAYE, BANGU, GURU, KACHIRO, CEBERU, MAKANGARA HAMLETS IN GWANDU LOCAL GOVERNMENT AREA OF KEBBI STATE WHO ARE BEING THREATENED WITH IMPRISONMENT AND/OR CONFISCATION OR DISPOSSESSION OF FARMLANDS BY THE UPPER SHARIA COURT GWANDU AT THE INSTANCE OF THE 5TH RESPONDENT.)
(APPELLANTS)

AND

UPPER SHARIA COURT GWANDU
THE PRESIDING JUDGE, UPPER SHARIA COURT, GWANDU
THE REGISTRAR, UPPER SHARIA COURT, GWANDU
ALH. BANDADO GWANDU
MALLAM MODI GWANDU
(RESPONDENTS)


PRONOUNCEMENT


A. ACTION
1. Legal Personality – The concept of a juristic person
Who is a juristic person

The concept of Juristic personality or legal persons is now central to virtually every legal system. A juristic person is a bearer of rights and duties simpliciter and has nothing to do with whether he is a natural person or not; but who is given legal personality by the law. A juristic person may be a company or a firm or some Governmental Agency or body for example. In other words, Juristic persons are entities other than human beings and on which the law bestows legal subjectivity. This does not mean that they assume the guise of natural persons, but that the law for the sake of some economic or social expediency recognizes a thing or community or group of persons as having legal personality and therefore the capacity to be the bearer of rights and duties and the ability to participate in the life of the law in its own name. As “juristic persons”, they are so called because it is the law that accords them that status, and as artificial persons created by the law, they can sue and be sued in their own names. Per OHO, JCA. read in context

2. Capacity to Sue and be Sued – How statutory bodies have the capacity to sue and be sued
Whether statutory bodies have the capacity to sue and be sued

The position of the law as enunciated by the apex Court in the case of Chief Andrew Thomas vs. Local Government Services Board (1965) NMLR 310, is that the creation by Statute alone does not give a statutory body a separate legal personality unless the Statute expressly or impliedly gives the body the right to sue or defend an action in its own name. However, such right could be implied where the exercise of powers under the Statute would result in injustice to a party to an action and that the injustice would be irreparable unless the statutory body’s power to defend the party’s action is implied in the circumstances of the case, could clearly not be doubted. See the cases of Carlen (Nig) Ltd vs. UNIJOS (1994) 1 NWLR (PT. 323) 63; The Provost Alvan Ikoku College of Education vs. Amuneke (1991) 9 NWLR (PT. 213) 49. This will of course, be the case where a statutory body is not given express powers to defend or sue in an action but it nevertheless exercises its statutory powers in such a way that harms or infringes the rights of a party.

What this in essence translates, is that very often than not, legal personality is usually implied in the activities of bodies or persons in order to obviate potential injustice to a party. See the case of Chief Andrew Thomas vs. Local Government Services Board (Supra) where the Local Government Services Board, although unincorporated was held to be capable of suing and be sued. The Supreme Court per BRETT, JSC held inter alia, thus;

“We reject the submission that a statutory body with functions like those of the Local Government Services Board is not liable to be sued for declaration and we do so more readily since the statutory provisions relating to the Appellant’s office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings”.

Similarly, in the case of K Ebimoh vs. The Board Of Governors, Western Ijaw T.T.C. (1966) NM R 130 the Court held that the Board of Governors of the college, though an unincorporated body, so long as it is empowered to perform certain statutory function, which could result in injury is said to have implied powers to sue and be sued in a Court of law.

In resolving a similar dispute in the case of Anozia vs. Attn-Gen. Lagos State; The Judiciary, Lagos State; The Chief Judge, Lagos State and The Chief Registrar, Lagos State (2010) LPELR-3778 this was what this Court per SAULAWA, JCA had to say on the subject;

“It is generally accepted that bodies created under the Constitution and duly conferred with certain statutory powers and duties are juristic persons even though established not expressly so designated. See Ibrahim vs. Judicial Service Commission (1998) 12 SCNJ 255, wherein the Supreme Court held that the Judicial Service Committee, one of the four statutory bodies established at the State level under Section 178(1) of the 1979 Constitution is a Corporation aggregate and/or legal personality capable of suing and being sued.” Per OHO, JCA. read in context

B. COURT
3. Raising Issues Suo Motu – The position of the law on how a Court should raise issues suo moto
Position of the law where Court raises an issue suo motu

The contention of Appellants’ Counsel is that it is wrong for the Court below to have raised suo motu the issue of visiting the locus in quo without giving the parties an opportunity to be heard on it. The settled position of the law, however, is that the Court below ought not to have raised an issue suo motu and decide upon it without hearing from the parties. But the apex Court is of the view that this applies to questions of fact and that in some special circumstances the Court can, especially in issues of law or jurisdiction suo motu and without the parties decides upon it. See Tukor vs. Government Of Gongola State (1989) 4 NWLR (PT. 117) 517; Effiom & Ors vs. Cross River State Independent Electoral Commission & Anor (2010) LPELR-1027 (SC). Per OHO, JCA. read in context

C. EVIDENCE
4. Estoppel Per Rem Judicatam – The implication of the doctrine of estoppel per rem judicatam
Effect of a plea of estoppel per rem judicatam

The Court below having visited the locus in quo and having made its findings, which included the fact that the Appellants’ application had been caught by the doctrine of estoppel per rem judicatam, which, when successfully pleaded would ousts the jurisdiction of Court before whom it is raised. See the case of Igwego & Ors vs. Ezeugo & Anor (1992) LPELR-1458 (SC). Per OHO, JCA. read in context

5. Res Judicata – When a matter is said to be res judicata and implication
Application of the principle of res judicata

It is perhaps, trite that where a Court of competent jurisdiction has settled by a final decision the matter in dispute between the parties, neither party nor his privy may re-litigate that issue again by bringing a fresh action on it, because the matter is said to be res judicata. See Ogbogu & Ors vs. Ndiribe & Ors (1992) LPELR- 2283 (SC). Per OHO, JCA. read in context

6. Res Judicata – The implication of plea of res judicata
Effect of a plea of estoppel per rem judicatam

Following a long line of decided cases the law is, and remains that the plea of res judicata, which the Court below found to be applicable in this matter prevented the Court from enquiring into a matter already adjudicated upon as it ousts the jurisdiction of Court to so do. In addition, the plea operates not only against the parties whom it affects but also against the jurisdiction of the Court itself as the party affected is estopped per rem judicatam from bringing a fresh claim before the Court as there has to be an end to litigation. Per OHO, JCA. read in context

D. PRACTICE AND PROCEDURE
7. Fundamental Right (Enforcement Procedure) Rules – Effect of failure to comply with the Fundamental Rights Enforcement Procedure Rules

Learned Appellants’ Counsel had made a heavy weather in asserting that the Court below did not consider the substantive application alongside the preliminary objection and had thus, acted contrary to the statutory requirements contained in Order VIII of the Fundamental Rights (Enforcement Procedure) Rules 2009, which prescribes that the Court below must hear and determine the two together. Assuming arguendo that the Court below did not hear and determine the Notice of preliminary objection and the substantive application together, one of the fundamental procedural changes brought about by the 2009 Rules is the move completely away from the emphasis on procedural technicalities in the enforcement of human rights disputes. The general rule as of now is based on Order 9(1) of the 2009 Rules, which provides that where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been a failure to comply with the requirements as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to the mode of commencement of the application. What this would seem to suggest is that a failure to comply with Order VIII of the Fundamental Rights (Enforcement Procedure) Rules 2009, by the Court below would not be fatal as it may not necessarily lead to the nullification of the proceedings of the Court. Per OHO, JCA. read in context

8. Fundamental Right (Enforcement Procedure) Rules – Power of Court when dealing with enforcement of fundamental rights matters

Perhaps, what the Appellants’ Counsel failed to realize is that the application presented to the Court below was one, which was meant for the enforcement of the Fundamental Rights of the Appellants and that Section 46 (2) of the 1999 Constitution, as Amended confers special jurisdiction on the Court in so doing to make such orders, issue such writs, and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the 1999 Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act to which the Applicant may be entitled. See the cases of Fajemirokun vs. Commercial Bank Of Nigeria Ltd & Anor (2009) 2-3 SC (Pt. 1135) 58; Olutola vs. University Of Ilorin (2004) NSCQR 256 AT 279. Per OHO, JCA. read in context

E. WORDS AND PHRASES
8. “Person” – What the word “person” denotes
Meaning of “person”

There may be the need to begin with the classical position. The word: ‘person’ is derived from the Latin term: ‘persona’, which meant the actor’s mask through which his voice must be sounded. The word later on, came to be used for those who could bear rights and duties. At the present time, it has acquired the meaning of denoting a being as one, which is capable of sustaining legal rights and duties. Thus, any person, whether natural or artificial, capable of sustaining legal rights and duties would be a legal person irrespective of the fact that he is a human being. The learned Author, CHIPMAN GRAY in his book: “The Nature and Sources of the Law” (2nd Edition, 1921) p. 27 defines: “person as an entity to which rights and duties may be attributed.” On the part of SIR JOHN SALMOND, in his book “Salmond on Jurisprudence” (12th Edition) p. 299 observes that: “A person is any being, whether a human being or not, whom the law regards as capable of rights and duties.” Per OHO, JCA. read in context


LEAD JUDGMENT DELIVERED BY OHO, JCA


This is an appeal against the Ruling of the High Court of Kebbi State (hereinafter referred to as the Court below) sitting at Birnin Kebbi in Suit No. KBHC/M.220/2014 and delivered on the 13-5-2015 in which the Court sustained a Notice of preliminary objection brought by the 5th Respondent challenging the competence of the Appellants’ application for the enforcement of their fundamental rights to fair hearing and their guarantee to own property pursuant to Sections 36(1), 43 and 44 respectively of the 1999 Constitution of the Federal Republic of Nigeria, as amended.

By the Appellant’s notice of motion filed on the 11-12-2014 they sought the following Reliefs;

A. A Declaration that the Applicants and all they represent not being parties or privies to the proceedings in suit no. USC/GD/CV/FI/76/2010 and Appeal nos. SCA/KBS/GD/24/2011 and CA/48S/2012 determined by the Upper Sharia Court Gwandu (1st Respondent) and the Kebbi State Sharia Court of Appeal and the Court of Appeal Sokoto Division, the Applicants and those they represent cannot be divested of their title to and possession of their farmlands under the pretext of executing the judgment of the Court of Appeal without a hearing by a properly constituted independent and impartial Court.

B. A Declaration that the proceedings before the 1st and 2nd Respondents which commenced by way of two sets of civil summons variedly dated and/or issued on the 14-11-2014 and 25-11-2014 and served on the Applicants constitute an abuse of the lawful processes of Court and is not kind of hearing contemplated by the provision of Section 36(1) and 43 and 44 of the 1999 Constitution, as amended.

C. A. Declaration that the whole of the proceedings as aforementioned before the 1st and 2nd Respondents as well as the orders or directives or writs made, granted or issued by the 1st and 2nd Respondents pursuant or further to the said proceedings, particularly the directives or orders made on or about 17-11- 14 and 28-11-2014 restraining the Applicants from entering into and cultivating their farmlands is in breach of the Applicants’ rights to fair hearing as guaranteed by the provision of Section 36(1) of the Constitution and therefore null, void and of no effect whatsoever.

D. AN Order directing the 2nd and 3rd Respondents to remove, bring and produce the aforementioned proceedings, orders, directives and writs/warrants from the 1st Respondent’s Court to this Hon. Court for purpose of being quashed.

E. AN Order quashing or setting aside the aforesaid proceedings and all orders or directives or writs or warrants made or granted or issued in the course of the same by the 1st and 2nd Respondents having been conducted and/or made or granted in flagrant violation of the Applicants’ fundamental human right to fair hearing and not to be deprived of their property without due process and consequently null, void and of no effect.

F. AN Order restoring the Applicants and those they represent to quiet, peaceful and undisturbed possession of their farmlands until their right to same or obligation to be divested or disposed of same is properly determined by a competent Court in accordance with Section 36(1) and due process.

G. AN Order of injunction restraining the Respondents, more particularly the 1st, 2nd and 5th Respondents by themselves their agents or servants or privies or any other person claiming through them or acting on their authority from interfering in any way or manner with the peaceful possession by the Applicants over their farmlands unless so permitted by order of a competent Court. H. Cost.

The 5th Respondent’s Notice of Preliminary Objection at the Court below was dated and filed on the 15-3-2015. The ground for bringing this objection is that the Court below lacked the requisite jurisdiction to entertain the Appellants’ action because the subject matter of the application, i.e., farmlands in dispute had been litigated upon by a Superior Court of record i.e., the Court of Appeal division in Sokoto on the 15-8-2013. After receiving arguments from learned Counsel to the parties the Court below delivered its Ruling on the 13-5-2015 sustaining the notice of Objection and in the process striking out the Appellants’ application for the enforcement of their perceived rights.

Dissatisfied with the said Ruling the Appellants have appealed to this Court vide their Notice of Appeal dated and filed on the 13-5-2015. There are four (4) Grounds of Appeal, which are reproduced here without their particulars as follows; See pages 223 – 232 of the record of appeal. GROUNDS OF APPEAL:

1. The learned trial judge erred gravely when he went outside Exhibit A before the Court which is legally relevant and admissible material for the determination of the issues subject matter, issues and parties raised in the preliminary objection of the 5th Respondent to determine that the parties, subject matter and issues in suit no. USC/GD/CV/FI/76/2010 that originated from the 1st Respondent Court and went on Appeal to Sharia Court of Appeal, Birnin Kebbi in Appeal No. SCA/KBS/GD/24/2011 & CA/S/48S/2012 are the same as those in Application for enforcement of fundamental right before the Court and on that basis held that the plea of estoppel per rem judicata applied to bar the Court from adjudicating on the merit of the Application brought by the Appellants.

2. The learned trial judge failed, neglected or refused in breach of her constitutional duty to give adequate consideration to the defense or case presented by the Appellants against the preliminary objection before the Court and by so doing breached the Appellants’ fundamental right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution, as amended.

3. The ruling of the Court below is perverse.

4. The learned trial judge erred in law by failing to or refusing or neglecting to hear/consider and determine the preliminary objection and the main Application for enforcement of fundamental right together despite urgings to that effect by Counsel.

ISSUES FOR DETERMINATION:

There were four (4) issues originally nominated for the determination of this Appeal but at the time of the hearing, learned Appellants’ Counsel chose to abandon the issue number four (4) and this was promptly struck out by this Court, thus leaving the issues 1, 2 and 3 which are reproduced here as follows;

1. Whether the learned trial judge/Court below was right in visiting the locus in quo and placing reliance on her findings from the said visit to determine or resolve the preliminary objection of the 5th Respondent that the subject matter of the Appellants’ application was the same as that which had been finally pronounced upon by the Court of Appeal, Sokoto Division. (Ground 1).

2. Whether the learned trial judge/Court below was right in failing, refusing or neglecting to consider and resolve the case presented for the Appellants in answer to the preliminary objection of the 5th Respondent, most especially Exhibit A before the Court before reaching the conclusion that the application for enforcement of fundamental right is caught by the defense of res judicata raised by the 5th Respondent and dismissing same. (Ground 2).

3. Whether having regards to the mandatory stipulations of VIII of the Fundamental Rights (Enforcement Procedure) Rules 2009 the learned trial judge/Court below was right in hearing and ruling only on the preliminary objection raised by the 5th Respondent and leaving the substantive application undetermined. (Ground 3).

On the part of the 1st, 2nd and 3rd Respondents, only an issue was nominated for the Court’s determination thus; “Whether the lower Court was right to have upheld the preliminary objection of the 5th Respondent?”

Ditto the 5th Respondent who adopted the sole issue nominated by the 1st-3rd Respondents and it is in respect of these issues that learned Counsel for the parties addressed this Court extensively in their briefs of argument and urged this Court to resolve same in favour of their sides. The undated Appellants’ Brief of argument settled by M. A. SAMBO ESQ., was filed on the 13-4-2016 and deemed properly filed on the 23-3-2017 while the 1st to 3rd Respondents’ Brief of argument dated the 20-8-2015 and filed on the 21-8-2015 and deemed properly filed on 23-3-2017 was settled by BAGUDU U. ABUBAKAR ESQ.,. The 5th Respondent’s brief of argument dated the 28-8-2015 and filed on the 4-9-2015 was settled by NASIRU SAHABI ESQ.,. At the hearing of the Appeal on the 9-5-2017, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their sides.

This Court, however, on the 30-11-2016 when the Appeal came up for hearing, raised suo motu, the issue of the competence of this Appeal concerning the juristic personality of the 1st to 3rd Respondents i.e., The Upper Shari’ah Court Gwandu, Presiding Judge of Upper Shari’ah Court Gwandu and the Registrar Upper Shari’ah Court Gwandu. And again, whether the said 1st to 3rd Respondents were made parties to the action at the Court below. Learned Counsel for the parties were asked to file and to exchange written addresses on account of this issue and on the 17-1-2017 learned Counsel for the Appellants and as well as learned Counsel for the 5th Respondent adopted their respective written addresses and the Court’s Ruling on the issue was reserved there and then to abide the judgment of this Court in the substantive matter. This being an issue touching on the competence of the Appeal before this Court and constructively on the issue of the jurisdiction of this Court to entertain the matter, prudence and exigencies dictates that the issue is first resolved before dealing with the substantive matter in the Appeal.

DETERMINATION OF THE JURISTIC PERSONALITY OF THE 1ST TO 3RD RESPONDENTS;
On behalf of the Appellants, learned Counsel argued that the 1st – 3rd Respondents are juristic persons that could sue and be sued in their names and that only natural persons and juristic persons are competent to sue or be sued; Counsel cited the case of Fawehinmi vs. Nigerian Bar Association (NO.2) (2002) 50 WRN 27. It was further argued that generally bodies created under the Constitution and duly conferred with statutory powers and duties are juristic persons, even though not expressly so designated. He cited the case of Ibrahim vs. Judicial Service Commission (2001) 37 WRN 114 where the

Supreme Court held that, the judicial service committee, one of the four statutory bodies established at the State level under Section 178 (1) of the 1979 Constitution is a Corporation aggregate and/or legal personality capable of suing and being sued.

Counsel also cited the case of Tony Anozia vs. The Attn-Gen. Of Lagos State, The Judiciary Lagos State, The Chief Judge Lagos State & The Chief Registrar Agos State (2011) 4 WRN 150 @ 164 where this Court per SAULAWA, JCA had this to say;

“A body created by Statute for the discharge of a specific function is capable of being sued in a claim for declaration relating to those functions, see THOMAS vs. LOCAL GOVERNMENT SERVICE BOARD (1965) NMLR 310 AT 312, where the Appellant sued the Local Government Service Board, a body created under Section 93 of the Local Government Law (west) but which was not a corporate body. It had, nonetheless power under Section 5 of the Customary Law to appoint (and therefore to remove) members of Customary Courts. The Appellants claim was for declaration that the termination of his appointment as a president of the Customary Court by the board was illegal and ineffective. One of the grounds for which the claim was resisted by the Board was that it (i.e. the board) was not a body corporate capable of suing or being sued and that consequently the action must fail. In overruling this contention, the Supreme Court held, inter alia per Brett JSC held, thus;

“We reject the submission that a statutory board with functions like those of local government service board is not liable to be sued for declaration, and we do so more readily since the statutory provisions relating to the Appellant’s office: are such that injustice might result if the board could not be made a defendant to any kind of proceedings.”

It was therefore the contention of Counsel that by virtue of Section 4 (1) of the Sharia (Administration of Justice) Law No. 3 2000 of Kebbi State, the 1st to 3rd Respondents are a creation of Statutes which provides thus;

“For the purpose of administration of Shari’ah law in the State, there are hereby established in the State the following Courts:

a. Shari’ah Court

b. Upper Shari’ah Court.

(2) A Shari’ah Court shall be established in every district of the State

(3) An Upper Shari’ah Court shall be established in every local government council in the State and shall be a Court of first instance and an Appellate Court.”

In his further arguments Counsel said that an action for a declaration as in the instant action which led to this Appeal is a procedural device for ascertaining and determining the rights of parties or for the determination of a point of law. He said that where the question is whether or not a statutory body’s discharge of its statutory function is in accordance with what the law provides, then the statutory body is definitely a competent party in the proceedings for such a declaration. For this reason, Counsel contended that as far as the Supreme Court is concerned Courts and Tribunals of all kinds are proper defendants to actions for actions involving prerogative writs and orders, even though it has never been suggested that they are liable in tort. It was further contended that it had been held that the proper Respondent in an application for an order of certiorari to quash the determination of a Court or Tribunal is the Court or Tribunal itself which made the decision complained about. In support of this proposition, Counsel cited the case of Igong vs. THE Board of Customs & Excise (1968) NMLR 249.

It was therefore the submission of Counsel that going by the reliefs sought by the Appellants before the Court below, being declaratory reliefs for the enforcement of fundamental rights, the 1st – 3rd Respondents being the one to be affected by the declaration and being the bodies established by Statute are therefore Respondents who are competent to be joined in the suit.

Counsel further submitted that in the event that this Court disagrees with the Appellants’ arguments, he contended that the joining of the 1st – 3rd Respondents in the suit at the Court below could only amount to a mis-joinder, which may only affect the 1st – 3rd Respondents, and that the remedy would be to strike out their names and will not necessarily affect the rights of other Respondents. He cited the case of ORKATER vs . EKPO & ORS (2014) LPELR-23525 (CA) where it was held that; “it is now settled law that no cause or matter shall be defeated by reasons of misjoinder/wrong joinder of parties.” See also Bello vs. INEC & Ors (2010) 184 LRCN page 54 where the Supreme Court held thus;

“The position of the law is well settled that no cause or matter shall be defeated by reasons of misjoinder or non-joinder of parties and the Court may in every cause or matter dealt with the matter in controversy so far as regards the right and interest of the parties actually before it”.

Counsel finally urged the Court to find and to hold that the Respondents are juristic persons who can sue and be sued in their names.

On the part of the 5th Respondent, it was submitted by Counsel that the 1st – 3rd Respondents are not juristic persons that could sue or be sued in their names and that it is only natural persons and juristic persons that are competent to sue or be sued. Counsel also cited the case of Fawehinmi vs. NBA (No.2) (Supra) and further submitted that the 1st – 3rd Respondents are not juristic persons and the argument of the Appellants counsel is not helpful to his case because he did not categorically state where the 1st – 3rd Respondents obtained their juristic personality from. He contended that to determine whether the 1st – 3rd Respondents are juristic persons recourse must be had to the KEBBI STATE SHARIAH LAW NO. 3 OF 2000, and not otherwise. In particular, Counsel referred to Section 4 of the said law quoted and relied upon by the Appellants’ Counsel and submitted that the said Section did not give juristic personality to 1st-3rd Respondents. It was therefore contended that the failure of the Appellants’ Counsel to state categorically where the 1st – 3rd Respondents got their juristic personality is fatal to the case of the Appellants and that the Appeal should be struck out. Counsel therefore urged this Court to hold that the 1st-3rd Respondents are neither natural persons nor juristic persons.

RESOLUTION OF THE QUESTION OF JURISTIC PERSONALITY;

There may be the need to begin with the classical position. The word: ‘person’ is derived from the Latin term: ‘persona’, which meant the actor’s mask through which his voice must be sounded. The word later on, came to be used for those who could bear rights and duties. At the present time, it has acquired the meaning of denoting a being as one, which is capable of sustaining legal rights and duties. Thus, any person, whether natural or artificial, capable of sustaining legal rights and duties would be a legal person irrespective of the fact that he is a human being. The learned Author, CHIPMAN GRAY in his book: “The Nature and Sources of the Law” (2nd Edition, 1921) p. 27 defines: “person as an entity to which rights and duties may be attributed”. On the part of SIR JOHN SALMOND, in his book “Salmond on Jurisprudence” (12th Edition) p. 299 observes that:
“A person is any being, whether a human being or not, whom the law regards as capable of rights and duties”.

The concept of Juristic personality or legal persons is now central to virtually every legal system. A juristic person is a bearer of rights and duties simpliciter and has nothing to do with whether he is a natural person or not; but who is given legal personality by the law. A juristic person may be a company or a firm or some Governmental Agency or body for example. In other words, Juristic persons are entities other than human beings and on which the law bestows legal subjectivity. This does not mean that they assume the guise of natural persons, but that the law for the sake of some economic or social expediency recognizes a thing or community or group of persons as having legal personality and therefore the capacity to be the bearer of rights and duties and the ability to participate in the life of the law in its own name. As “juristic persons”, they are so called because it is the law that accords them that status, and as artificial persons created by the law, they can sue and be sued in their own names.

It would be recalled that the argument of learned Appellants’ Counsel was that bodies generally created under the Constitution and duly conferred with statutory powers and duties in the same manner of the 1st to 3rd Respondents are juristic persons even though not expressly so designated. To buttress his arguments, Counsel cited a number of decided cases and Section 4 (1) of the Shariah (Administration of Justice) Law No. 3 2000 of Kebbi State, under which he contended that the 1st to 3rd Respondents achieved their status of juristic personality. On the part of learned Counsel for the 5th Respondent, the inability of the Appellants to accurately pin-point the Section, which expressly confers legal personality on the 1st to 3rd makes it fatal to their action.

The position of the law as enunciated by the apex Court in the case of Chief Andrew Thomas vs. Local Government Services Board (1965) NMLR 310, is that the creation by Statute alone does not give a statutory body a separate legal personality unless the Statute expressly or impliedly gives the body the right to sue or defend an action in its own name. However, such right could be implied where the exercise of powers under the Statute would result in injustice to a party to an action and that the injustice would be irreparable unless the statutory body’s power to defend the party’s action is implied in the circumstances of the case, could clearly not be doubted. See the cases of Carlen (Nig) Ltd vs. UNIJOS (1994) 1 NWLR (PT. 323) 63; The Provost Alvan Ikoku College of Education vs. Amuneke (1991) 9 NWLR (PT. 213) 49. This will of course, be the case where a statutory body is not given express powers to defend or sue in an action but it nevertheless exercises its statutory powers in such a way that harms or infringes the rights of a party.

What this in essence translates, is that very often than not, legal personality is usually implied in the activities of bodies or persons in order to obviate potential injustice to a party. See the case of Chief Andrew Thomas vs. Local Government Services Board (Supra) where the Local Government Services Board, although unincorporated was held to be capable of suing and be sued. The Supreme Court per BRETT, JSC held inter alia, thus;

“We reject the submission that a statutory body with functions like those of the Local Government Services Board is not liable to be sued for declaration and we do so more readily since the statutory provisions relating to the Appellant’s office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings.”

Similarly, in the case of Kpebimoh vs. The Board Of Governors, Western Ijaw T.T.C. (1966) NMLR 130 the Court held that the Board of Governors of the college, though an unincorporated body, so long as it is empowered to perform certain statutory function, which could result in injury is said to have implied powers to sue and be sued in a Court of law.

In resolving a similar dispute in the case of Anozia vs. Attn-Gen. Lagos State; The Judiciary, Lagos State; The Chief Judge, Lagos State and The Chief Registrar, Lagos State (2010) LPELR-3778 this was what this Court per SAULAWA, JCA had to say on the subject;

“It is generally accepted that bodies created under the Constitution and duly conferred with certain statutory powers and duties are juristic persons even though established not expressly so designated. See Ibrahim vs. Judicial Service Commission (1998) 12 SCNJ 255, wherein the Supreme Court held that the Judicial Service Committee, one of the four statutory bodies established at the State level under Section 178(1) of the 1979 Constitution is a Corporation aggregate and/or legal personality capable of suing and being sued.”

With this at the background, I am simply unable to agree that the 1st to 3rd Respondents are not clothed with the requisite juristic personalities in this matter. Here was a case in which the proceedings leading to this Appeal had been one commenced for the claim of declaratory reliefs and in, which the proceedings at the lower trial Court had also been taken before the Court below for the enforcement of rights in a proceeding analogous to the prerogative writ of Certiorari proceedings. It would be recalled that the Appellants, by so doing had sought to enforce their rights to fair hearing and freedom to own property. The writ was therefore issued on the Court below as the issuing Court in order that it may bring the proceedings of the lower trial Court as an inferior Tribunal before it for inspection and for purposes of the proceedings, being quashed if and when there are due causes disclosed to that effect. So long therefore, as the proceedings of this nature lie only against bodies exercising judicial or quasi-judicial authority and in respect of acts performed by them in that capacity, I once again simply find myself unable to agree that the 1st to 3rd Respondents are not juristic personalities in the circumstances of this case and I so hold. The objection is accordingly overruled and the Appeal shall therefore be heard on its merit.

DETERMINATION OF SUBSTANTIVE APPEAL; ARGUMENTS OF LEARNED COUNSEL FOR THE PARTIES:

APPELLANTS’ COUNSEL:

Learned Appellants’ Counsel chose to begin his arguments in the Appeal by the argument of the third issue nominated for the determination of this Appeal thus;

ISSUE THREE:

Whether having regards to the mandatory stipulations of VIII of the Fundamental Rights (Enforcement Procedure) Rules 2009 the learned trial judge/Court below was right in hearing and ruling only on the preliminary objection raised by the 5th Respondent and leaving the substantive application undetermined. (Ground 3).

In his arguments on this issue, learned Appellants’ Counsel drew attention to pages 208 – 209 of the records of appeal especially lines 16-26 of page 208 and line 1 of page 209 which shows that on the 8-4-2015 when the matter came before the Court below Counsel to the parties agreed to argue both the preliminary objection and the substantive application together as required by extant rules. It was further argued by Counsel that after taking arguments for and against the preliminary objection, the Court below visited the locus on the 28-4-2015 and arbitrarily reserved ruling for the 13-5-2015. He also referred Court to page 213 lines 31 – 37 and page 214 lines 1-2 of the records of appeal where he said that the Court below avoided or aborted the hearing of the substantive application.

According to Counsel, the Court’s ruling was delivered as scheduled on the 13-5-2015, where it sustained the preliminary objection and dismissed the application for enforcement of right, thus completely foreclosing the consideration or determination of the said application. Counsel also submitted that this procedure should not have been adopted by the Court below as it is most irregular and against the present trend in judicial proceedings such as those for enforcement of fundamental human rights, which by their nature are sensitive and required consideration and determination. It was further argued by Counsel that apart from the mutual understanding of all Counsel that the preliminary objection and substantive application should be heard and determined together, it is a statutory requirement that the Court below must hear and determine the two together. Counsel referred Court to Order VIII of the Fundamental Rights (Enforcement Procedure) Rules 2009 in this connection.

Learned Counsel told this Court that this provision was brought to the attention of the Court below on 8-4-2015 via paragraph 3.1 of the written address of the Appellants in reply/opposition to the Preliminary objection, but that the Court pointedly ignored same. He referred Court to pages 146 – 147 and 208 – 209 of the records of appeal. It was therefore submitted that this attitude is in breach of the duty imposed on the Court below by extant rules. Counsel argued that the rationale for Order VIII is to avoid unnecessary delay in the determination of sensitive rights matters and provide the Appellate Court an opportunity to review the merit of the decision of the trial Court on a preliminary objection and the substantive matter, in the likely event either party appeals the decision of the trial Court.

Learned Counsel also contended that the procedure prescribed by Order VIII of the Rules of the Fundamental Rights Enforcement Procedure is akin to the procedure in originating summons proceedings based on affidavit evidence. He cited the case of Adeleke vs. O.S.H.A. (2006) 16 NWLR (PT. 1006) 608 AT 687 paras C-E, 703 paras H and 716 paras B-C in support. Counsel finally urged the Court to resolve issue three (3) in favour of the Appellants and against the 5th Respondent and to allow the appeal on this ground.

ISSUE ONE;

Whether the learned trial judge/Court below was right in visiting the locus in quo and placing reliance on her findings from the said visit to determine or resolve the preliminary objection of the 5th Respondent that the subject matter of the Appellants’ application was the same as that which had been finally pronounced upon by the Court of Appeal, Sokoto Division (Ground 1).

In arguing this issue, Counsel drew attention to Exhibit A referred to at paragraph 14 of the Appellants’ supporting affidavit. This, he said contains the proceedings and judgments of the Upper Sharia Court Gwandu (1st Respondent in this appeal) in Suit No. USC/GW/CV/FI/76/2010 delivered on 20/5/2011; the Kebbi State Sharia Court of Appeal in Appeal No. SCA/KBS/GWD/24/2011 delivered on 2/2/2012 and the Court of Appeal Sokoto Division in Appeal No. CA/S/48S/2012 delivered on 15/8/2013. See pages 24 – 107 of the records of appeal. It is instructive to note that this same Exhibit A is the document which accompanied the 5th Respondents’ Notice of preliminary objection filed at the Court below and on which the said Respondent placed reliance to ground his objection that the matter is res judicata.

This Court was told by Counsel that on 28/4/2015 the Court below proceeded on the visit or inspection of the farms during or after which the Court expressed the following views –

“The Court is on the visit to the locus and we met the Applicants who are the farm owners. The site we visited is the site that has been litigated upon up to the Court of Appeal Sokoto. We met the family of Mal. Muh’d Dan Mallam Abdullahi who sought for distribution of the inheritance of the families’ farmland in Kachira, Gwandu, Cheberu and Kambaza all in Gwandu District. Mal. Modi Gwandu spoke on behalf of his family of Sarkin Gwandu Maliki. The Applicants are being represented by Ma. (sic) Uman, Kwage 1st Applicant. It has been confirmed that it is the same farm litigated upon.”

This Court was further told that after laying the necessary foundation, the Court below in her consideration and resolution of the issues raised in the preliminary objection expressed the following view, which formed the basis of the Court’s upholding the preliminary objection and dismissing the Appellants’ application. The Court said –

“When the Applicants filed this motion, they denied that it was the same subject matter and that the parties were not the same. Counsel for the 5th Respondent informed the Court that it was the 4th and 5th Respondents who leased the farmlands to all the Applicants and since the original suits were between the families of 4th and 5th Respondents, the Court decided to visit the locus on 28th of April, 2015 with all the parties in attendance and their Counsel so as to satisfy itself.”

It was thereafter the submission of Counsel that a Court or judge must never raise any issue for either party and proceed to base its decision or judgment on it without hearing them on the issue. He cited the cases of Ugo vs. Obiekwe (1989) 1 NWLR (PT. 99) 566 AT 582 & Idowu vs. The State (1998) 11 NWLR (PT. 574) 354; (1998) 9 SCNJ 40. Counsel also cited the position of the Court of Appeal in the case of Ahmad vs. Sokoto State House of Assembly & 1 Ors. (2002) 44 WRN 52 which he said is most instructive on the procedure adopted by the Court below and that one of the issues raised in that Appeal before the Kaduna Division was the propriety of the trial Court relying on a letter from the office of the Hon. Attorney General of Sokoto State informing of the pendency of a similar suit before the Federal High Court Abuja Division in an ex parte application, while at the same time refusing to consider a notice of discontinuance of the same suit that was presented before the Court.

Still on the impropriety of a Court raising an issue suo motu and basing its decision on same without hearing parties, Counsel cited the Supreme Court in the case of Abisi vs. Ekwealor [1993] 6 NWLR (PT. 302) 643 and
submitted that what the learned trial judge in the Court below did was not different from what happened in the cases of Ahmad vs. Sokoto State House of Assembly & 1 Ors. (Supra) and ABISI vs. Ekwealor (Supra). It was equally contended the Court below wrongly scrounged for extraneous material found in the course of her purported visit to the locus and which she completely relied upon and by so doing held brief for the Respondents and used materials or evidence she received improperly from the visit to defeat the Appellant’s case. It was further contended that this disposition effectively brought the Court below down into the arena of litigation and compromised the role of the Court as an impartial umpire.

Learned Counsel also submitted in addition that apart from the affidavit in support of the application for enforcement of fundamental rights that was before the Court below, Exhibit A (containing the proceedings and judgments of the 1st Respondent, the Kebbi State Sharia Court of Appeal and the Court of Appeal) is the only other legal material or evidence, which the Court below was obliged to consider to resolve or determine the preliminary objection of the 5th Respondent. He said that from these materials the Court could without difficulty discern who the parties were or are now; the claim and issues then and now; the subject matter then and now as well as what was actually decided by the previous Court.

Counsel argued that this was demonstrated by the Supreme Court to be the right approach in the case of Ituama vs. Akpe-Lme (2000) 3 NSCQR 69 AT 95 LINES 2-8 where the Supreme Court per KALGO, JSC, speaking on the use of a Court judgment said –

“It has been well settled that Court judgment are only used, when tendered in a trial, to determine and confirm what was actually decided in the case and not to use the evidence given in it for or against any of the parties therein. See Igwego v. Egeugo (1992) 6 NWLR (Pt.240) 561 at 587; Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 129 Udomba v. Odiese (1990) 1 NWLR (Pt. 125) at 186.”

It was further contended by Counsel that the views of the Supreme Court in the case of Usman Kusfa & Ors vs. Umaru Garba Kusfa [1997] 1 NWLR (PT. 483) 525 is instructive and helpful in the understanding of the point being made here. In that case one of the issues was whether the High Court rightly held that the defense or plea of res judicata was not applicable in the circumstances of that case.

In this case, Counsel drew attention to the manner in which the apex Court painstakingly waded through the three (3) judgments relied upon by the party who raised the plea of estoppels and compared same with the fresh claim giving rise to the said objection for purpose of resolving the issue. He contended that the Supreme Court did not embark on any voyage of discovery to the locus in quo in order to determine the issue of estoppel. Learned Counsel commended this procedure to this Court as the appropriate way or means by which the Court below ought to have proceeded in resolving the objection raised by the 5th Respondent to the application of the Appellants in the Court below and urge the Court of Appeal to so hold. He urged the Court to therefore resolve issue one (1) in favour of the Appellants and against the 1st Respondent and allow the Appeal on this ground.

ISSUE TWO:

Whether the learned trial judge/Court below was right in failing, refusing or neglecting to consider and resolve the case presented for the Appellants in answer to the preliminary objection of the 5th Respondent, most especially Exhibit A before the Court before reaching the conclusion that the application for enforcement of fundamental right is caught by the defense of res judicata raised by the 5th Respondent and dismissing same (Ground 2).

According to learned Counsel, this issue brings to the fore the effect of the failure of the Court below to consider all the materials placed before it and the issues raised or canvassed in the written address of the Appellants in opposition to the preliminary objection. Counsel argued that this issue is closely linked or related to issue one (1) argued above. It was contended by Counsel that the learned trial judge at the Court below merely restated in summary the issues and submissions made by Appellants’ Counsel without giving them any serious consideration or a resolution to the issues raised therein. He argued that soon after the restatement, the Court jettisoned the Appellants’ arguments without any indication whatsoever about what the disposition of the Court was and suddenly switched gear to the facts discovered or found by the Court in the course of what it discovered in the course of its visit to the locus in quo. He added that the Court below completely failed refused or neglected to consider the case put forward for the Appellants in the written address submitted by Counsel.

According to Counsel the case for the Appellants in this Appeal is that this failure, refusal or neglect to give any consideration/resolution to the case or defense of the Appellants by looking into Exhibit A and comparing same with the application before it to satisfy itself that the parties, subject matter and issues were the same or not, amounts to a refusal to hear the Appellants in a crucial matter in, which they had a right to be heard regard being had to the clear provision of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended.

Counsel argued that the hearing contemplated by Section 36(1) is not a matter of mere formality where a Court allows a party to say his bit only to ignore same in its consideration or determination of the case on its merit. He cited the case of Ahmad vs. Sokoto State House of Assembly & 1 Ors (2002) 44 WRN 52. It was further submitted by Counsel that failure to afford a party his Constitutional right to fair hearing is a vice that renders the whole proceedings a nullity. See Adigun vs. A. G. of Oyo State (1987) 1 NWLR (PT. 53) 678; Olatunbosun vs. Niser (1988) 3 NWLR (PT. 80); Buzugbe vs. Civil Service Commission (1984) S.C. 19; Federal Civil Service Commission vs. Laoye (1989) 2 NWLR (PT. 106) 652. Counsel urged this Court to resolve this issue in favour of the Appellants.

1ST TO 3RD RESPONDENTS’ COUNSEL;

The sole issue nominated by learned 1st to 3rd Respondents’ Counsel is;

“Whether the lower Court was right to have upheld the preliminary objection of the 5th Respondent?”

Learned Counsel argued that in their supporting affidavit before the Court below, the Appellants deposed to the fact that they were summoned to appear before the 1st to 3rd Respondents on the 17-11-2014 and 28-11-2014 in connection with a “mystical” and non-existent civil suit via Exhibits “B ” to “B9′” thereof. Counsel on account of this position referred to paragraphs 5, 6 and 16 at pages 17, 18 and 19 of the records of Appeal. Counsel further contended that the Appellants deposed to the fact that they were not parties to any suit that will warrant the attachment of their farmlands, to the effect that:-

“…No claim was read to us or proved by the 5th Respondent at whose instance, the applicants were summoned respecting the farmlands.”

And:-

“…We were similarly not afforded any opportunity to make any representation as to our titles or how we came to be in possession and use of the various Farmlands, which we were directed to stay clear off.”

Counsel referred Court to paragraphs 26 and 27 at page 20 of the records and as a way to verify what is deposed to here above, Counsel referred to Exhibits “B1” to “B9″ contained in pages 108 to 126 of the records, which were processes issued by the Upper Shariah Court, Gwandu. Similarly, to verify what is contained in the second deposition, Counsel contended that one has to make recourse to the Judgment of the Upper Shariah Court, Gwandu as contained in pages 28 to 54 of the records. According to Counsel, that Judgment formed the genesis of the application before the Court below and which consequently led to the Appeal before this Court.

It was therefore contended by Counsel that whatever one is going to say in respect of this Appeal, must of necessity revolve around the records of the Upper Shariah Court, Gwandu. He also contended that an Appellate Court cannot go outside the records of appeal in search of evidence favorable to any of the parties like pleadings which bind parties at the High Court as the Appellate Courts are clearly bound by the records of appeal. In other words, he said that the records of proceeding or appeal, bind the parties and the Court until the contrary is proved as there is a strong presumption of the genuineness of the records which is rebuttable. Counsel cited the case of Prince Abubakar Audu vs. Federal Republic of Nigeria (2013) 8 NCC 596.

Against the backdrop of submissions Counsel, he contended that from the records of the Upper Shariah Court, Gwandu, it can glaringly be seen that there is nowhere, it was shown that any of the 56 Appellants appeared before that Court or was heard to defend his/her title to the farmlands sought to be attached in execution of the said Judgment. But what Counsel said which appeared to be like some form of appearance before the Upper Shariah Court, Gwandu was the proceedings at page 29 from line 8 of the records, where in response to a question asked by the trial Judge, Abubakar Kane Gwandu, the initial Respondent to the Suit, stated thus:

“That is right that farms are in my possession based on entrustment. But they are not the ones that gave them to me. It was Alh. Bandado that entrusted them to me and I did not see him. And whoever is present here is in possession of a farm and I am the person that gave it to him. As such everyone should be invited, but I prefer Alh. Bandado to come.”

Counsel also referred Court to page 30, from line 18 of the records of the Upper Shariah Court, Gwandu when the Court as a result of this piece of evidence stated thus;

“The Court ordered M. Chika and M. Bello to go and measure that whole farms together with the family of Muh’d and the Hausa people who are in possession of the farms on entrustment…”

As far as Counsel is concerned, these two phrases – “And whoever is present here is in possession of a farm” and “The Hausa people who are in possession of the farms” are vague and fictitious as they did not name any specific person. For this reason, Counsel argued that as far as the records are concerned, the only persons that were before the Upper Shariah Court, Gwandu are the 4th and the 5th Respondents and Abubakar Kane Gwandu simpliciter. It was also argued that parties to an action are those whose names appeared on the records of the Court as plaintiffs and defendants. He cited the cases of Olawoye vs. Jimoh (2013) 54.2 NSCQR 1136 at 1154, paras A-C in this regard. From the foregoing, Counsel submitted that the Appellants were not before the Upper Shariah Court, Gwandu and that they were never heard by that Court regarding, how they possess their attached farmlands in the substantive suit that has come to this Court on appeal in suit No: CA/S/48S/2012.

Learned Counsel also disclosed that there is a pending appeal before the Supreme Court in the substantive Suit challenging the decision of this Court of 15/8/2013 in appeal No: CA/S/48S/2012. See pages 105 and 106 of the records for the notice of appeal, dated 09/09/2013.

It was contended that the Appellants herein being in physical possession of some of the farmlands being litigated in the substantive Appeal now before the Supreme Court, makes them necessary parties in that suit and ought to have been joined as such. For this, Counsel cited the cases of Green vs. Green (1987) 3 NWLR (PT. 60) 480; Azubuike vs. POP (2014) 57.2 NSCQR 826 at 844 – 845, PARAS C – G and A – O; Olawoye vs. JIMOH (2013) 54.2 NSCQR 1136; and AZUH vs. UBN (2014) 60 NSCQR 458.

The conclusion of learned Counsel in respect of this issue is that the Appellants are necessary parties to that Suit at the Upper Sharia Court Gwandu.

5TH RESPONDENT’S COUNSEL;

It would be recalled that the 5th Respondent adopted the sole issue nominated by the 1st to 3rd Respondents thus; “The sole issue is whether the lower Court was right to have upheld the preliminary objection, of the 5th Respondent?

Learned Counsel began by submitting that the Court below was right to have sustained the preliminary objection of the 5th Respondent. Counsel argued that it was the objection of the 5th Respondent that the application instituted by the Appellants before the Court below was in respect of the same subject matter, which this Court had determined in Appeal No CA/S/48S/2012 on the 15-08-2014. He contended that before the Court below were exhibited by both the Applicants Counsel and that of the 5th Respondent Counsel, the certified true copies of Judgments of the Upper Shariah Court, Gwandu in Suit No. USC/GD/CV/F/76/2010; the certified true copies of the judgment of the Sharia Court of Appeal in Suit No. SCA/KBS/GD/24/2011 delivered on the 2-02-2012; the certified true copy of the Judgment of the Court of Appeal, Sokoto Division in Appeal No.CA/S/48S/2012 delivered on 15-08-2013; the certified true copy of the Order of the Court of Appeal and the certified true copy of the Notice of Appeal to the Supreme Court dated 9-9-2013 between Alhaji Bandado Gwandu vs. Mallam Modi Gwandu who are the 4th and 5th Respondents in this case and the 4th Respondent who is the Appellant at the Supreme Court.

Learned Counsel drew attention of Court to page 27 lines 1-5 of Exhibit A, which is the Judgment of the Upper Sharia Court Gwandu reproduced below thus;

“I Nasiru Umar Zagga, Judge of Upper Shari’a Court Gwandu based on the foregoing decided this case by confirming that these farms to the heirs of Muh’d Mal. Abdullahi Fodjo. That these farms should be divided among the 5 children of Muh’d the son of Abdullahi. They Ahmadu, Bayero, Maliki, Buhari and AI-Mustapha”.

As far as Counsel was concerned it was this Judgment that was confirmed by the Court of Appeal reversing that of the Sharia Court of Appeal B/Kebbi that triggered this Appeal. He said that the 4th Respondent was the loser by this decision in Gwandu and also the Appellant now before the Supreme Court. Counsel also contended that on the request of the Applicants’ Counsel, Mr. Shaka this Court requested that the proceedings in which the Order of the Court of Appeal Sokoto dated 6-6-2014 be made available to this Court and that it was provided.

This Court was told that when the Applicants filed their motion, they denied that it was the same subject matter and that the parties were not the same. But that it was Counsel for the 5th Respondent that informed the Court that it was the 4th and 5th Respondents who leased the farmlands to all the Applicants and since the original suits were between the families of 4th and 5th Respondents, the Court then decided to visit the locus on 28-4-2015 with all the parties in attendance and their Counsel so that the Court below could satisfy itself that there were no two farmlands in existence as far as the matter pending before the Court was concerned. He said that upon visiting the locus in quo the Court found that the subject matter is the same as that litigated upon between 4th and 5th Respondents who are heirs and representing their families over the vast farmlands while the Applicants derived their title through them who were parties in the original suits mentioned earlier.

It was the argument of Counsel that the plea of res judicata prohibits the lower Court from enquiring into a matter already adjudicated upon and that the plea also ousts the Jurisdiction of the Court and operates not only against the parties whom it affects but also against the jurisdiction of the Court itself as the party affected is estopped per rem judicatum from bringing a fresh claim before the Court as there must be an end to litigation. Counsel referred to the case of Dingyadi vs. INEC (2010) 11 SCNJ 1 AT 7.

Counsel further argued that it was based on the above submission and argument that the Court below sustained the preliminary objection of the 5th Respondent and held that the issues, subject matter and the parties are the same and that the Applicants not being the actual owners of the farmlands cannot file an action for title to the farmlands against Alh. Bandado Gwandu and Mallam Modi Gwandu who are the 4th and 5th Respondents in this application and original parties to the suits earlier adjudicated upon and which came on Appeal to the Court of Appeal, Sokoto and has now gone to the Supreme Court as there must be an end to litigation. Counsel urged this Court to dismiss this Appeal as lacking in merit.

RESOLUTION OF APPEAL

The facts leading to this Appeal are rather straight-forward. By an application filed on the 11-12-2014, all 56 Appellants jointly applied to the High Court of Kebbi State for the Enforcement of their fundamental rights to fair hearing and to own landed property and not to be deprived of same except in accordance with and for a purpose prescribed by law as enshrined in Sections 36(1), 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria, as Amended. See pages 1- 136 of the records of Appeal.

Upon being served with the said application, the 5th Respondent filed a Notice of Preliminary objection challenging the competence of the application on the ground that the Sokoto Division of this Court had once adjudicated over the same subject matter. No other processes were filed by the 5th Respondent in opposition of the grant of the application. See pages 137 – 142 of the records of Appeal. The 1st, 2nd and 3rd Respondents on their part filed a written address in, which they supported the grant of the application in the interest of justice. See pages 196 – 201 of the records of Appeal. As for the 4th Respondent, he was unrepresented by Counsel but appeared before the Court below in person. In his response to the application, he informed the Court below that he was not opposed to the grant of the application. See page 207 lines 6 – 7 of the records of Appeal.

In response to the preliminary objection raised by the 5th Respondent, the Appellants filed a written address joining issues with the 5th Respondent. See pages 145 – 168 of the records of Appeal. On the 8-4-2015 when the matter came before the Court below for hearing, Counsel for the parties all agreed to argue both the preliminary objection and the substantive application together as required by extant rules. See pages 208 – 209 of the records of Appeal. See particularly, lines 16 – 26 of page 208 and line 1 of page 209 of the records.

After taking arguments for and against the preliminary objection and as well as the substantive application, the Court below suo motu directed that it would proceed to inspect or visit the farms in dispute to ascertain whether or not they are the same as those previously litigated upon by the Upper Sharia Court Gwandu and affirmed by the Court of Appeal, Sokoto Division. See lines 11- 19 on page 213 of the records of Appeal. Consequent upon the said order, on the 28-4-2015, the Court below, accompanied by Counsel and 4th and 5th Respondents proceeded to visit some farmlands following, which the Court below reached the conclusion that the said farms were the same as those previously litigated upon; ditto the parties and thereafter reserved ruling on the preliminary objection. See page 213 lines 31 – 37 and page 214 lines 1-2 of the records of Appeal.

On the 13-5-2015, the Court below delivered its ruling and sustained the preliminary objection and dismissed the application for the Enforcement of rights having found that the issues, subject matter and parties in the application for enforcement of rights and those in the suit commenced at the Upper Sharia Court Gwandu, which culminated in an appeal to the Court of Appeal, Sokoto Division were the same. See pages 215 – 222 of the records of Appeal in this connection.

However, a careful examination of the issues nominated by the Appellants in this Appeal and, which appropriately captures the gravamen of the grievances of the Appellants will reveal that they are dissatisfied with the Court below for a number of reasons, chief of which is the Court’s reliance on the findings from the visit to the locus in quo in resolving both the 5th Respondent’s notice of preliminary objection and the Appellants’ substantive application. Another point of discontentment is what the Appellants have termed the Court’s refusal to consider and to resolve the case presented by the Appellants in answer to the preliminary objection of the 5th Respondent and subsequently deciding that the Appellants’ application was caught by the defense of res judicata raised by the 5th Respondent. The Appellants’ further grouse also stemmed from what they have termed the Court’s hearing and ruling only on the preliminary objection raised by the 5th Respondent and leaving the substantive application for the enforcement of rights undetermined.

Against the backdrop of these issues, the need to take a careful but calm consideration of the records of Appeal and the Ruling of the Court below delivered on the 13-5-2015 could not be over emphasized. No elaborate poring over dusty volumes and the frantic search of tons of case law may be required in the opinion of this Court in resolving this Appeal. The Ruling of the Court below is contained at pages 215 to 222 of the printed records in this Appeal. At page 217 of the printed records, line 20 to 25, this Court cannot help but critically observe that even on the face of the records, there is ample evidence that the Appellants’ application was heard alongside the notice of preliminary objection raised by the 5th Respondent when the Court’s record showed thus;

“Before the application was moved, Mr. Shaka Counsel for the Applicants informed the Court that the 5th Respondent Counsel opted not to file a Counter affidavit but filed a preliminary objection raising the defense of Res Judicata, which he has been served and has filed a Reply to same dated and filed on 20th March, 2015”.

Apart from this, at lines 26 to 33 of pages 217 to 218 the impression unmistakably conveyed while reading what transpired at the Court below, is that the Court, strictly in compliance with the provisions of Order VIII of the Fundamental Rights (Enforcement Procedure) Rules, 2009 heard and determined both the Preliminary Objection and the substantive application at one and the same time (together), otherwise what was recorded in lines 26 to 33 of pages 217 to 218 of the printed records would have been utterly meaningless. For the avoidance of doubt, the relevant record is reproduced thus;

“In response to this application, the learned Chief State Counsel MR. BAGUDU ABUBAKAR, Counsel for the 1st to 3rd Respondents stated that he did not file a counter affidavit as all the materials needed for the adjudication of this case are already before this Court more so, when they are nominal parties but he however filed a written address dated 17th April, 2015 opposing the main application which he adopted as his legal argument. He submitted that the law is that an Appellate Court cannot go outside the records of Appeal in search of evidence favourable to any of the parties…” (Underline, that of Court for emphasis)

It would be recalled that the arguments of learned Appellants’ Counsel had centered on the impression he had bandied about in this Appeal that the Court below had decided the matter placed before it by hearing and ruling only on the preliminary objection raised by the 5th Respondent and leaving the substantive application for the enforcement of rights undetermined. But a painstaking examination of the records reveal an entirely different scenario to the extent that even the 4th Respondent one MALLAM BANDADO GWANDU who was unrepresented by Counsel was recorded to have informed the Court below that;

“… he was not opposing what the Applicants are seeking for, the farms are not in his possession and he was not the one who instituted the claim and do not intend to file any reply”.

See lines 12 to 14 of the page 218 of the printed records.

See also page 210 in addition.

It is perhaps, important to state here that the only line of resistance and opposition to the grant of the Application was by the 5th Respondent who filed a Notice of preliminary objection and which effectively became the only defense recorded against the grant of the Application. This is in view of the fact that from the state of the averments of the parties in their various depositions filed at the Court below, particularly from the point of view of the 1st to 3rd Respondents and the 4th, they were clearly not in opposition. The Appellants as Applicants, having therefore, through their Counsel J. C. SHAKA ESQ., who copiously and frontally responded to the points raised in opposition to the grant of the Application (See pages 211 to 212 of the printed records), it is rather surprising that the Appellants could in all seriousness turn around and claim that the Court below did not hear the substantive application in which the Appellants had sought the grant of some rights protection.

As stated earlier on, the only ground of opposition raised by the 5th Respondent is the question of whether the subject matter, i.e., farmlands, which was central to the Appellant’s substantive application had in fact been a subject of a previous litigation between the parties and that whether the defense of res judicata was not available to the 5th Respondent. It would however, be proper to note here that the decision of the Court below in visiting the locus in quo to ascertain that the subject matter of the application had not been subject of a previous litigation, was informed by and large by the submissions of Counsel to the parties before the Court. At page 212 of the records of Appeal at lines 16 to 22 the Court below was recorded as having stated thus;

“… I have listened to all the arguments by the Applicants’ Counsel and that of the 1st to 3rd Respondents as well the 5th Respondent’s Counsel. It is my view that the Court should visit the locus in quo which is the subject matter of this application in order to satisfy myself that the subject matter is not the same before taking any further steps. This application is hereby adjourned to 28-4-2015 for all the parties to meet at the Upper Sharia Gwandu from where we shall move to the locus in quo before making my ruling on the preliminary objection raised by the 5th Respondent”.

It is instructive to note that after taking oral submissions of Counsel in the Court below and that after the Court’s visit to the locus in quo, what next followed is a clinical consideration of the issues involved as encapsulated in the lower Court’s Ruling delivered on the 13-5-2015 in which the Court not only found that the subject matter of the instant suit was indeed the same as those previously litigated between the parties but also that the plea of res judicata was applicable to the matter.

Learned Appellants’ Counsel had made a heavy weather in asserting that the Court below did not consider the substantive application alongside the preliminary objection and had thus, acted contrary to the statutory requirements contained in Order VIII of the Fundamental Rights (Enforcement Procedure) Rules 2009, which prescribes that the Court below must hear and determine the two together. Assuming arguendo that the Court below did not hear and determine the Notice of preliminary objection and the substantive application together, one of the fundamental procedural changes brought about by the 2009 Rules is the move completely away from the emphasis on procedural technicalities in the enforcement of human rights disputes. The general rule as of now is based on Order 9(1) of the 2009 Rules, which provides that where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been a failure to comply with the requirements as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to the mode of commencement of the application. What this would seem to suggest is that a failure to comply with Order VIII of the Fundamental Rights (Enforcement Procedure) Rules 2009, by the Court below would not be fatal as it may not necessarily lead to the nullification of the proceedings of the Court.

Perhaps, what the Appellants’ Counsel failed to realize is that the application presented to the Court below was one, which was meant for the enforcement of the Fundamental Rights of the Appellants and that Section 46 (2) of the 1999 Constitution, as Amended confers special jurisdiction on the Court in so doing to make such orders, issue such writs, and give such directions as it may consider just or appropriate for the purpose of enforcing or securing the enforcement of any of the fundamental rights provided for in the 1999 Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act to which the Applicant may be entitled . See the cases of Fajemirokun vs. Commercial Bank Of Nigeria Ltd & Anor (2009) 2-3 SC (Pt. 1135) 58; Olutola vs. University Of Ilorin (2004) NSCQR 256 at 279.

Appellants also made a mountain out of a molehill on the question of the lower Court’s decision to visit the locus in quo so as to ascertain before taking any further steps in the matter whether the subject matter, which was central to the application for the protection of rights had not been subject to a previous litigation and probably caught by the doctrine of res judicata.

The contention of Appellants’ Counsel is that it is wrong for the Court below to have raised suo motu the issue of visiting the locus in quo without giving the parties an opportunity to be heard on it. The settled position of the law, however, is that the Court below ought not to have raised an issue suo motu and decide upon it without hearing from the parties. But the apex Court is of the view that this applies to questions of fact and that in some special circumstances the Court can, especially in issues of law or jurisdiction suo motu and without the parties decides upon it. See Tukor vs. Government of Gongola State (1989) 4 NWLR (PT. 117) 517; Effiom & Ors vs. Cross River State Independent Electoral Commission & Anor (2010) LPELR-1027 (SC).

The Court below having visited the locus in quo and having made its findings, which included the fact that the Appellants’ application had been caught by the doctrine of estoppel per rem judicatam, which, when successfully pleaded would ousts the jurisdiction of Court before whom it is raised. See the case of Igwego & Ors vs. Ezeugo & Anor (1992) PELR-1458 (SC).

It is perhaps, trite that where a Court of competent jurisdiction has settled by a final decision the matter in dispute between the parties, neither party nor his privy may re-litigate that issue again by bringing a fresh action on it, because the matter is said to be res judicata. See Ogbogu & Ors vs. Ndiribe & Ors (1992) LPELR- 2283 (SC). What this Court, nevertheless, finds difficult to come to terms with is the fact that the Appellants have in all seriousness thought it necessary for the Court below to have taken further steps after the Court’s visit to the locus in quo and the Court’s subsequent discoveries that;

1. The subject matter in the instant suit and the parties, and those previously litigated upon are the same except that the Appellants/Applicants not being the actual owners of the farmlands cannot file an action for title to the farmlands against Alhaji Bandado Gwandu and Mallam Modi Gwandu who are the 4th and 5th Respondents in this Application and original parties to the suits earlier adjudicated upon and which went on Appeal to the Court of Appeal, Sokoto and now to the Supreme Court;

2. That the 4th and 5th Respondents were the ones who leased the farmlands to the Appellants/Applicants and that the original suits were actually between the families of the 4th and 5th Respondents, while the 4th and 5th Respondents are heirs representing their families over the vast parcel of farmlands and that the Appellants/Applicants as privy to the said 4th and 5th Respondents, deriving their title through them, cannot under the scheme of things, re-litigate in these matters by bringing a fresh action to Court;

Following a long line of decided cases the law is, and remains that the plea of res judicata, which the Court below found to be applicable in this matter prevented the Court from enquiring into a matter already adjudicated upon as it ousts the jurisdiction of Court to so do. In addition, the plea operates not only against the parties whom it affects but also against the jurisdiction of the Court itself as the party affected is estopped per rem judicatam from bringing a fresh claim before the Court as there has to be an end to litigation.

In the final analysis, I simply find myself unable to fault the Court below in its Ruling delivered on the 13-3-2015. In essence, therefore, the Appeal fails and it is accordingly dismissed. The Ruing of the High Court of Kebbi State, Birnin Kebbi delivered on the 13-3-2014 is hereby affirmed. There are no orders as to costs.

MUKHTAR, JCA

I had the privilege of a preview of the lead judgment just delivered by my learned brother, Frederick O. Oho, JCA. I agree with the entire reasoning therein and the conclusion that the appeal is lacking in substance.

The appeal is accordingly dismissed. I subscribe to the orders made in the judgment.

SHUAIBU, JCA

I have been privileged to read in advance a copy of the lead judgment just delivered by my learned brother, Frederick O. Oho, JCA. I agree with him that there is no merit in the appeal and same is hereby dismissed.