MU’AZU V TUKUR

MU’AZU V TUKUR


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

ON THURSDAY, 7TH JUNE, 2018


Appeal No: CA/J/217/2016
CITATION:

Before Their Lordships:

ADAMU JAURO, JCA

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA


BETWEEN

ALHAJI AHMED ADAMU MU’AZU

(APPELLANT)

AND

ADAMU TUKUR

(RESPONDENT)


PRONOUNCEMENTS


A. COURT
1. Raising Issues Suo Motu – Position of the law on the Court raising an issue suo motu

Position of the law where Court raises an issue suo motu

“The application dated 4-4-2014 for the joinder of Federal Ministry of Housing and Urban Development and Secretary Implementation Committee as parties to the suit was heard on 23rd June, 2014. The appellant herein as respondent to the application, opposed the application. Hence the application was contentious. The trial Court that heard the application had the requisite jurisdiction to hear such an application. The trial Court in a ruling delivered on 21-7-2014 granted the said application. It is against the grant of the said application that the appellant filed an application dated 7-4-2016 for an order vacating the order of joinder made on 21-7-2014, hence resulting in this appeal. In consequence of the ruling on the appellant’s application, the trial Court struck out the entire suit. It is noteworthy to observe, albeit by way of passing remark that the ruling for the joinder of the 2nd and 3rd defendants, was neither made in default of appearance, without jurisdiction, nor fraudulently obtained, hence not a nullity. In the circumstance, the ideal thing for the appellant to have done if not satisfied with the joinder, is to appeal against the ruling not to file an application to vacate the order. The trial Court in its wisdom on hearing the application struck out the substantive suit suo motu. The striking out of the suit was made without affording the parties an opportunity to address the Court on the propriety or otherwise of the order. It is trite law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it without hearing both sides, however clear the issue may appear. Where a Court raises an issue suo motu, it is fair that the Court should hear counsel to the parties on the matter particularly from the party that may be adversely affected by the issue raised. Where a Court raised an issue suo motu without giving counsel an opportunity to address on it, the Court will clearly be in breach of the principle of fair hearing. The rationale behind the principle that a Court should be wary in raising an issue suo motu is to maintain the role of the Court as an independent adjudicator in Nigerian adversarial system of jurisprudence. There is a legal duty on the Court to give the parties or their legal representatives the opportunity to react or address it on the issue raised. See ARAKA V. EJEAGWU (2000) 15 NWLR (Pt. 692) 684, OLATUNJI V. ADISA (1995) 2 NWLR (Pt. 376) 167, MAIYAKI V. MAIDOYA (1988) 3 NWLR (198) 3 NWLR (Pt. 81) 226, LEADERS OF COMPANY LTD. V. BAMAIYI (2010) 18 NWLR (Pt. 1225) 329, MOJEKWU V. IWUCHUKWU (2004)11 NWLR (Pt.883)196, ODEDO V. PDP (2015) LPELR-24738 (SC), SHITTA-BEY V. PUBLIC SERVICE COMMISSION (1981)1 SC 40 at 59, STATE V. OLADIMEJI (2003)14 NWLR (Pt. 839)57, OGUNDELE & ANOR. V. AGIRI & ANOR (2009)18 NWLR (Pt. 1173) 219. Hence the striking out of the suit suo motu without hearing the parties amounts to a breach of the appellant’s right to fair hearing and delving into the substantive suit at an interlocutory stage and therefore wrong. A breach of parties right to fair hearing is fundamental as it renders the proceedings null and void.”Per JAURO, J.C.A read in context

B. PRACTICE AND PROCEDURE
2. Preliminary Objection – Appropriate time to consider a preliminary objection

Whether a preliminary objection should be considered and determined first before dealing with the merits of an appeal

“The respondent having raised a preliminary objection, same will be considered first. The rationale for the preferential treatment accorded to preliminary objection, is because it is a challenge to the hearing of the appeal and where it succeeds, there will be no need to go into the merit of the appeal. See ONYEMEH V. EGBUCHULAM (1996) 5 NWLR (Pt. 448) 255, GALADIMA V. TAMBAI (2000) 11 NWLR (Pt. 677) 1, A.G, FEDERATION V. ANPP (2003) 18 NWLR (Pt. 851) 182, OSUN STATE GOVT. V. DALAMI (2003) 7 NWLR (Pt. 818) 72, SKYMIT MOTORS LTD. V. UBA PLC. (2014) ALL FWLR (Pt. 721) 1547 at 1559, NNB PLC. V. IMONIKHE (2002) 5 NWLR (Pt. 760) 294.”Per JAURO, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY JAURO, J.C.A.


The instant appeal is against the ruling of the Borno State High Court of Justice delivered on 31st May, 2016 by Hon. Justice A.G. Kwajaffa in Suit No. BOHC/MG/CV/29/2013.

The facts giving rise to this appeal can be summarized as follows. The appellant as claimant before the trial Court sued the respondent as defendant claiming for declaration of title over property situate at No. 8, Ahmed Gonimi Road, Old GRA. Maiduguri and covered by ertificate of Occupancy No. BO/45100 issued by the Borno State Government. The case of the appellant from the pleadings was that he was sold the property by Borno State Government and issued with a Certificate of Occupancy No. BO/45100 of 15th February, 2005. The appellant averred that when he moved to renovate the property, he found the defendant on the land committing acts of trespass and has refused to vacate the place despite all entreaties. The respondent as defendant averred that while in service as a police officer he was allocated the house in dispute as his official residence and he stayed in the house as a tenant of the Federal Government for over six years. Subsequently, with the introduction of the policy on owner occupier, the house was sold to him as a sitting tenant at the cost of N3,115,000.00 and was issued receipt No. 005234 with a Federal Government Certificate of Occupancy No. 005017 registered as No. 61 page 61 in Volume 155 at the Federal Lands Registry Ikoyi. The sale was made by the Federal Ministry of Housing and Urban Development in conjunction with the implementation committee of the white paper on the Commission of Inquiry into Alienation of Federal Government Landed Property.

In the course of proceedings, the respondent as defendant, vide an application dated 4th April, 2014 sought for the joinder of Federal Ministry of Housing and Urban Development and the Secretary Implementation Committee of the white paper of the Commission of Inquiry on the Alienation of Federal Government landed property as 2nd and 3rd defendants, respectively. The application was granted vide a ruling delivered on 21st July, 2014 and the duo were joined to the case, as 2nd and 3rd defendants. In another twist, the appellant as claimant vide an application dated 7th April, 2016 sought for the following orders from the trial Court:

“1. AN ORDER vacating the order made on the 21st July, 2014 on grounds of nullity.

PARTICULARS

(a) the Court lack jurisdiction

(b) the parties joined by the Court are Federal Government of Nigeria’s Agencies.
2. AND for such order of others as this Court may deem fit to make in the circumstances.”

The aforementioned application was heard on 18th May, 2016 and ruling delivered on 31st May, 2016 wherein the trial Court instead of determining the application one way or the other either vacating its order of 21st July, 2014 or refusing to vacate same, veered off and struck out the substantive suit. The complete one and a half paged ruling is hereby reproduced, thus:

”RULING

This is an application brought pursuant to Order 39 Rules 1 & 2 of the Borno State High Court Civil Procedures 2012 and the inherent Powers of this Court praying for:

1) An order vacating the order made 21st July, 2014 on ground of nullity.

Particulars

a) The Court lacks jurisdiction

b) The parties joined by the Court are Federal Government of Nigeria’s Agencies.

Omnibus prayer

The application is supported by a 6 paragraphs affidavit and a written address.

In arguing the application, S.M. Konto Esq., submitted that in view of Section 251 of the 1999 Constitution the Court lacks jurisdiction over the Federal Government Agencies, which is vested in the Federal High Court.

The defendant/respondent submitted that the logical conclusion that flow for the submissions of the application the application as the 2nd and 3rd defendants are now parties to the suit.

It is the contention of the defendant that the 2nd & 3rd defendants are necessary parties for a just and effectual determination of the matter.

In view of the provisions of Section 251 of the 1999 Constitution which oust the jurisdiction of this Court in favour of the Federal High Court I am not only reacting the order made on 21/07/2014 but also declines jurisdiction to hear this case in so holding, I rely on the case of AB.S.I.E.C. Vs. KANU (2013) ALL FWLR Pt. 696 AT page 555 where the Supreme Court held:

“By the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria 1999, the jurisdiction of the State High Court is taken away and conferred exclusively on the Federal Government or any of it agencies is a party. The State High Court would no longer have jurisdiction such matters notwithstanding the nature of the claim in the action.

Consequently, Suit No. BOHC/MG/CV/27/2013 is hereby struck out for want of jurisdiction.”

Apparently unhappy with the aforementioned ruling striking out his action, the claimant queried same by filing the instant appeal. The Notice of appeal is dated 12th June, 2016 and predicated upon two grounds of appeal, namely:

“GROUNDS OF APPEAL

1. The learned trial judge erred in law when he delved into the substantive suit and determined same at interlocutory stage thereby occasion a miscarriage of justice.

PARTICULARS OF ERRORS

a. The appellant brought motion to set aside the earlier ruling of the trial Court but the Court struck out the entire suit at the interlocutory stage.

b. The trial Court ought to have ruled on the motion but not to delve in to the substantive suit by striking out same.

2. The learned trial judge erred in law in striking out the suit without affording the appellant fair hearing.

PARTICULARS OF ERRORS

a. The appellant was not heard when his case was struck out.

RELIEF SOUGHT

An order setting aside the Ruling of the Borno State H i g h C o u r t s t r i k i n g o u t t h e s u i t N o . BOHC/MG/CV/29/2013.”

In compliance with the Rules of Court, parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument is dated 8th November, 2016 and filed on 10th November, 2016 though deemed on 28th November, 2016. The appellant’s reply brief is dated 8th January, 2018 and filed on the 10th January, 2018. The respondent filed a notice of preliminary objection dated 11th December, 2017 and filed on 12th December, 2017 and a respondent’s brief also dated 11th December, 2017 and filed on 12th December, 2017. On the date fixed for the appeal, H.M. Mare Esq., adopted paragraphs 3.1 to 3.3. of the respondent’s brief in support of the preliminary objection and urged the Court to strike out the appeal. B.G. Ali Esq., adopted paragraphs 1.0 to 1.05 of the appellant’s brief in response to the preliminary objection and urged the Court to dismiss same. On the main appeal B.G. Ali Esq., adopted the appellant’s brief and paragraphs 2.01 to 2.05 of the reply brief in urging the Court to allow the appeal and set aside the ruling of the lower Court. H.M. Mare Esq., adopted the respondent’s brief in urging the Court to dismiss the appeal.

The appellant formulated a single issue for determination on page 3 of the appellant’s brief as follows:

“Whether the trial Court was right in delving into the substantive case in determining an interlocutory application, thereby striking out the substantive case.”

The respondent on the other hand, also nominated a sole issue for determination in paragraph 4.0 of his unpaginated brief, to wit:

“Whether the decision of the lower Court now appealed from amounts to delving into the substance of the case.”

The respondent having raised a preliminary objection, same will be considered first. The rationale for the preferential treatment accorded to preliminary objection, is because it is a challenge to the hearing of the appeal and where it succeeds, there will be no need to go into the merit of the appeal. See ONYEMEH V. EGBUCHULAM (1996) 5 NWLR (Pt. 448) 255, GALADIMA V. TAMBAI (2000) 11 NWLR (Pt. 677) 1, A.G, FEDERATION V. ANPP (2003) 18 NWLR (Pt. 851) 182, OSUN STATE GOVT. V. DALAMI (2003) 7 NWLR (Pt. 818) 72, SKYMIT MOTORS LTD. V. UBA PLC. (2014) ALL FWLR (Pt. 721) 1547 at 1559, NNB PLC. V. IMONIKHE (2002) 5 NWLR (Pt. 760) 294.

PRELIMINARY OBJECTION

The notice and grounds of the preliminary objection are captured on the first page of the Notice of Preliminary Objection dated 11th December, 2017 and filed 12th December, 2017 and paragraph 3.0 of the respondent’ brief. The said notice, and grounds in support of same are hereby reproduced thus:

“PRELIMINARY OBJECTION

That the Notice of Appeal filed in this case is incompetent for non-compliance with Section 24 of the Court of Appeal Act, 2004 and Order 6 Rule 2 (1) of the Court of Appeal Rules 2016 and the appeal should be dismissed.

The grounds upon which the objection is being raised are:

a. The lower Court made an order on 21/07/2014 joining Federal Ministry of Works and Housing and the Secretary Implementation Committee of the white paper on the Commission of Inquiry into the Alienation of Federal Government Landed Property as 2nd & 3rd defendants respectively.

b. That it was the said order that prompted the application of the appellant for which the lower Court struck out the case before it which culminated into this appeal.

c. The appellant did not include the Federal Ministry of Works and Housing and the Secretary Implementation Committee of the white paper on the Commission of Inquiry into the Alienation of Federal Government Landed Property as 2nd & 3rd respondents in this appeal.

d. That having not stated the names of the 2nd and 3rd respondents as persons affected by this appeal in the Notice of Appeal to this appeal makes the appeal incompetent and this Court lacks the jurisdiction to entertain same.”

The respondent stated that it is trite law that proper parties brought before a Court for adjudication ignites the competence to entertain a case. It was submitted that by the order of 21-7-2017, it has become incumbent on the appellant to join Federal Ministry of Works and Housing and the Secretary of the Implementation Committee of the white paper on Commission of Inquiry of Federal Government Landed Property as 2nd and 3rd respondents. It was argued that failure to join the aforementioned two parties, renders the appeal incompetent and lacking in substance. It was therefore urged that the appeal be struck out.

In response, it was submitted that the preliminary objection is misconceived and misleading as the appellant’s appeal is against the ruling delivered on 31st May, 2016 on page 110 of the record. It was argued that the parties in the said ruling are Alh. Ahmed Adamu Mua’azu, the appellant as applicant and Adamu Tukur as respondent. It was contended that the Federal Ministry of Works and Housing and the Secretary Implementation Committee are not parties to the ruling appealed against by the appellant. It was therefore urged that the preliminary objection be dismissed.

The respondent by the preliminary objection, challenged the competence of the notice of appeal on the ground that Federal Ministry of Works and Housing and Secretary Implementation Committee were not joined as respondents to the appeal. In response, the appellant contended that the ruling now on appeal has not reflected them as parties, hence the failure to join them does not affect the competence of the appeal.

The ruling now on appeal is the one delivered on 31st May, 2016 and contained on pages 110 to 111 of the record. The parties on record in the ruling as reflected on page 110 of the record, are the appellant and the respondent. For ease of reference, the portion depicting the parties as reflected on the ruling is hereby reproduced thus:

“IN THE HIGH COURT OF BORNO STATE OF NIGERIA IN THE MAIDUGURI JUDICIAL DIVISION HOLDEN AT MAIDUGURI. BEFORE HIS LORDSHIP HON. JUSTICE A.G. KWAJAFFA – JUDGE THIS TUESDAY THE 31ST DAY OF MAY, 2016 Motion No: BOHC/MG/CV/29/2013

BETWEEN:

ALHAJI AHMED ADAMU MU’AZU – -APPELLANT AND
ADAMU TUKUR – – – – RESPONDENT.”

It is clear from the above reproduced portion of the ruling, that on the face of the ruling, the Federal Ministry of Works and Housing and Secretary Implementation Committee were not parties in the said ruling. The instant appeal is against the same ruling.

The notice of appeal on page 112 of the record, reflected the same parties on record as reflected on page 110 of the record. The failure to join the Federal Ministry of Works and Housing and Secretary Implementation Committee is not fatal to the appeal as they were not reflected as parties in the ruling. Though the Federal Ministry of Works and Housing and Secretary Implementation Committee were joined as parties, their joinder takes effect when processes are amended reflecting their names as parties and they are duly served processes of Court. Consequent upon the foregoing, the preliminary objection is lacking in merit and it is hereby dismissed.

SOLE ISSUE

The basic complaint of the appellant in this lone issue is that the trial Court was wrong in striking out the substantive suit, while determining an interlocutory application. The appellant stated that in the determination of any interlocutory application pending the trial of the substantive suit, care should be taken not to make pronouncement which may prejudice the trial of the pending substantive suit in which evidence is yet to be adduced. In support reference was made to the following cases: ADELEKE V. LAWAL (2014) ALL FWLR (Pt.710)1226 at 1241, D.P.L.C.L. V. B.P.C. (2008) 4 MJSC 161 at 178-179. It was argued that in the instant case, the trial Court instead of determining the application argued before it delved into the substantive case by striking out same without determining the application argued. It was urged that the lone issue be resolved in favour of the appellant.

The respondent stated that the application dated 11-4-2016 amounts to challenging the jurisdiction of the lower Court, in that by the appellant’s assertion the lower Court lacked jurisdiction to entertain the case with Federal Government Agencies as 2nd and 3rd defendants. It was submitted that the only order open to a Court divested of jurisdiction is to strike out the suit. In support, reference was made to the case of DANIEL BILJI V. A U T. JIME (2016)7 CAR 162 at 172. It was contended that deciding the issue of jurisdiction would not foist a situation that dictates what a Court should do contrary to due process to bring the case within its jurisdiction. In support, reference was made to the following cases:ODOM V. P.D.P. (2015) 61 NSCQR 984 at 1045, ABDUSSALAM V. SALAWU (2002) 6 SC (Pt. 11) 196, TUKUR V. GOVT. OF GONGOLA STATE (1989) 9 SC 1. It was posited that the application that 2nd and 3rd defendants be disjointed cannot hold water as they are necessary parties. In support, reference was made to OGUNWUJI & ORS. V. FCDA & ORS. (2016)10 & 11 CAR 302 at 310 and 312.

It was submitted that once Federal Government or any of its agencies is a party to a suit, irrespective of the nature of the claim it is only the Federal High Court that can entertain the matter. In support, reference was made to the following cases: ABSIEC V. KANU (2013) 13 NWLR (Pt. 1370) 69 at 83, NEPA V. EDEGBENRO (2000)18 NWLR (Pt. 798) 79 at 97, MIN OF INTERNAL AFFAIRS V. ALIYU (2005) 3 NWLR (Pt. 911) 30 at 43, AHMED V. AHMED (2013) 15 NWLR (Pt. 1377) 274 at 333. It was argued that the trial Court was right in striking out the claimant’s case for want of jurisdiction and it does not amount to delving into the substantive suit. In conclusion, it was urged that the issue be resolved in favour of the respondent and the appeal be dismissed.

In a short reply, the appellant still maintained that the lower Court delved into the substantive case by striking out same without determining the application argued. In support, reference was further made to the case ADELEKE V. LAWAL (2014) ALL FWLR (Pt. 710) 1226 at 1241. It was urged that the appeal be allowed.

The application dated 4-4-2014 for the joinder of Federal Ministry of Housing and Urban Development and Secretary Implementation Committee as parties to the suit was heard on 23rd June, 2014. The appellant herein as respondent to the application, opposed the application. Hence the application was contentious. The trial Court that heard the application had the requisite jurisdiction to hear such an application. The trial Court in a ruling delivered on 21-7-2014 granted the said application. It is against the grant of the said application that the appellant filed an application dated 7-4-2016 for an order vacating the order of joinder made on 21-7-2014, hence resulting in this appeal. In consequence of the ruling on the appellant’s application, the trial Court struck out the entire suit.

It is noteworthy to observe, albeit by way of passing remark that the ruling for the joinder of the 2nd and 3rd defendants, was neither made in default of appearance, without jurisdiction, nor fraudulently obtained, hence not a nullity. In the circumstance, the ideal thing for the appellant to have done if not satisfied with the joinder, is to appeal against the ruling not to file an application to vacate the order. The trial Court in its wisdom on hearing the application struck out the substantive suit suo motu. The striking out of the suit was made without affording the parties an opportunity to address the Court on the propriety or otherwise of the order. It is trite law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it without hearing both sides, however clear the issue may appear.

Where a Court raises an issue suo motu, it is fair that the Court should hear counsel to the parties on the matter particularly from the party that may be adversely affected by the issue raised. Where a Court raised an issue suo motu without giving counsel an opportunity to address on it, the Court will clearly be in breach of the principle of fair hearing. The rationale behind the principle that a Court should be wary in raising an issue suo motu is to maintain the role of the Court as an independent adjudicator in Nigerian adversarial system of jurisprudence. There is a legal duty on the Court to give the parties or their legal representatives the opportunity to react or address it on the issue raised. See ARAKA V. EJEAGWU (2000) 15 NWLR (Pt. 692) 684, OLATUNJI V. ADISA (1995) 2 NWLR (Pt. 376) 167, MAIYAKI V. MAIDOYA (1988) 3 NWLR (198) 3 NWLR (Pt. 81) 226, LEADERS OF COMPANY LTD. V. BAMAIYI (2010) 18 NWLR (Pt. 1225) 329, MOJEKWU V. IWUCHUKWU (2004)11 NWLR (Pt.883)196, ODEDO V. PDP (2015) LPELR-24738 (SC), SHITTA-BEY V. PUBLIC SERVICE COMMISSION (1981)1 SC 40 at 59, STATE V. OLADIMEJI (2003)14 NWLR (Pt. 839)57, OGUNDELE & ANOR. V. AGIRI & ANOR (2009)18 NWLR (Pt. 1173) 219. Hence the striking out of the suit suo motu without hearing the parties amounts to a breach of the appellant’s right to fair hearing and delving into the substantive suit at an interlocutory stage and therefore wrong. A breach of parties right to fair hearing is fundamental as it renders the proceedings null and void.

Consequent upon the foregoing postulations, the lone issue is resolved in favour of the appellant hence the appeal is meritorious.

The appeal is allowed and the ruling of the lower Court striking out the suit is hereby set aside. In its stead, the motion filed by the appellant to vacate the order of joinder is hereby struck out. The case is hereby remitted to the Hon. Chief Judge Borno State for re-assignment to another Judge for a hearing de novo on the merit. There will be no order as to costs.

ONYEMENAM, J.C.A.

I have had the benefit of reading in draft the leading judgment of my learned brother ADAMU JAURO JCA just delivered. I agree with the reasoning and conclusion for allowing the meritorious appeal. I too allow the appeal and as well add my affirmative voice to sustain the decision reached therein. I remit the case to the Chief Judge of Borno State for re-assignment to another Judge for retrial on merit. I abide by the order as to costs.

ABIRU, J.C.A.

I have had the privilege of reading the lead judgment delivered by my learned brother, Adamu Jauro, J.C.A. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide by the conclusions reached therein.

Appearances:

B.G. ALI, ESQ. For Appellant(s)

H.M. MARE, ESQ. For Respondent(s)